It all seemed so promising just a little over a week ago. On July 24 the House only narrowly defeated (217-205) the Amash Amendment to the next military spending bill, which would have cut off funding for the NSA’s collection of telephone metadata, which was the first secret program revealed by Edward Snowden through Glenn Greenwald. This effort capped a flurry of bills aimed at reining in the surveillance that were introduced, at least, in June and July (h/t Shahid Buttar). (Add: Holt Bill to repeal the Patriot Act and FISA Amendments Act, introduced July 24.)

To be sure, at least some here at FDL thought the vote was Kabuki (see the comments thread here). However, these sophisticates did not explain how their hypothesis squared with the report that Nancy Pelosi aggressively campaigned against the measure, with no hint of backing off on some members just enough so as to ensure a close vote. Nor did they explain why the supposed theatric presentation dictated that a majority of the Congressional Black Caucus, including its most prominent members, would go against their nominal racial leader in the White House and vote in favor of the amendment.

Most importantly, the proponents of the theory that the vote was rigged failed to dampen the enthusiasm of the Congressional advocates of reforming the NSA. Especially, a hearing at the Capitol was scheduled for the last day of the month specifically for the purpose of giving NSA critics a chance to expound on their concerns.

Still, the nay-sayers might as well have been right: A week later the movement was all but dead, as the Congress got out of Dodge.

For one thing, the erstwhile leader of the Democratic Party decided he wanted to chat with those of his troops who were specifically members of the House on the day the critics hearing, mostly involving House people, was to happen. Whether because no one wanted to buck his prestige or because it was sensed that the cause was now hopeless, the hearing was cancelled.

Given that fact, the one event meriting a bit of discussion is the Senate Judiciary Committee’s hearing on the surveillance held on July 31. The first hour and fifty minutes was taken up with the testimony of four administration witnesses and questioning of them by Committee members.

The tone of this session was, I feel, set not so much by the opening remarks of the Chairman, Sen. Leahy, as by those of the ranking minority member, Sen. Grassley. He said (beginning about 7 minutes into the C-SPAN video) that privacy and security are “equally important” (in addition to an insistence that “foreign terrorists” have no rights under the US Constitution, and a gratuitous swipe at Clinton administration policies for supposedly keeping 9/11 from being thwarted). Thus the notion of the zero-sum game involving the two abstractions was firmly in place, and any notion that it represents asking the wrong question was ruled out.

And the actual importance of this session, at least to the administration, might be measured by the representatives it sent. NSA Director Alexander preferred to spend the day at a hackers convention in Las Vegas (where one hears he was not especially well received), and so Deputy Director John Inglis did the honors. DNI Clapper did not show, but his office’s legal counsel Robert Litt did. The Attorney General and the FBI were also represented by deputies.

The discussion itself was virtually entirely on the specific NSA program whereby telephone metadata is collected in bulk and on the supposed restrictions on it use. The collection of internet information was not mentioned. Nor, especially, did one hear of the June 20 Guardian revelation that the exceptions to the rule that warrantless investigation of the communications (telephone or internet) of individuals not be applied to US persons are so numerous as to defeat the rule in practice.

Within that framework, the officials gave the now standard talking points that the telephone metadata program has been endorsed by, and is overseen by, all three branches of government, and that it has been instrumental in disrupting numerous terrorist plots, such as the Zazi subway bombing case (which has been refuted numerous times as something where NSA-derived intelligence was not in fact key).

To be sure, when pressed for examples where disruption of a plot absolutely required the NSA input, Inglis could only come up with one: the discovery of two San Diego men sending money to Somali terrorists.

Nonetheless, and despite some rhetorical comments from Chairman Leahy questioning the utility of such a program, the discussion was promptly diverted into “reforming” it, in two ways. One way was to make it more “transparent” by declassifying some decisions by the FISA court, and another way was to introduce a public advocate in the court’s proceedings to counter arguments by the government’s lawyer. The witnesses pronounced the government willing to consider such reforms, which was hardly surprising since they would not change the basic issues: the capture of personal information (such as, say, the fact that you called an abortion clinic) without a warrant, and the further warrantless investigation of you if your metadata comes under one of the numerous exceptions to the rule against targeting US persons.

The last half-hour of the hearing was taken up by testimony from and questioning of three more witnesses, of whom only one needs mention here. At the 1 hour and 56 minute mark an ACLU representative said that surveillance affects the behavior of the populace in negative ways, and that Congress should pass legislation banning bulk metadata collection, among other things. At one point he was asked if it would alleviate any his concerns if FISA court proceedings were made adversarial, but otherwise he was ignored.

Thus the July 31 hearing of the Senate Judiciary Committee. (Other summaries can be found in the NY Times and the LA Times.) The fact that the NSA Programs (the one discussed and others) do violence to the US Constitution was entirely lost, and needless to say, the fact that their actual purpose is not combatting terrorism in the first place (as I argue here) never saw mention.

With that, Congress went on vacation, and the administration issued a mysterious terror warning, for the month of August. Interpret either point as you will.

E. F. Beall

E. F. Beall