- Deliberating Surveillance Policy:Congress, the FBI, and the Abuse of National Security Letters
The chronic threat of terrorist attacks, with potential for catastrophic harm, imposes extraordinary challenges on policymakers. To serve the country’s interests responsibly and effectively, they have to provide enhanced security against varieties of threat that the country rarely contemplated, much less encountered, before September 11, 2001. In particular, they have to enable government authorities to prevent the worst attacks on civilian targets before they occur—not just apprehend and punish those who have already committed crimes.
At the same time, competent policymakers need to protect deeply valued, constitutionally established rights and prevent security measures from undermining democratic politics. A government that can investigate citizens without constraints and can apprehend merely suspected potential criminals can also use these powers to intimidate dissenters and stifle criticism. It could use such methods not only to suppress dissidents or radical movements but even to weaken and subordinate a mainstream opposition party. At the extreme, partisan abuse of investigatory authority could lead to a Putin-style, one-party democracy. Unless policymakers find ways to reconcile dramatically expanded security capabilities with robust political liberties and privacy protections, the health of American democracy is at risk.
Reconciling the interests in security and privacy requires competent deliberation on surveillance policy and thorough oversight of intelligence practices. Both responsibilities fall primarily to Congress. But does Congress [End Page 447] have the capacity to perform these tasks? Does it use information and analysis competently and weigh the relevant concerns in a balanced, discriminating way? Or do legislators distort deliberations either to pursue ideological agendas or to pander to public fears? Under what circumstances do legislators perform their deliberative tasks better or worse? And does the quality of congressional deliberations ultimately shape policy outcomes?
To answer these questions, we examine congressional deliberations on national security letters (NSLs). NSLs are a means authorized by law for investigators to obtain an array of private records on U.S. persons, often from third parties—such as banking statements, phone records, credit reports, and so on—without the requirement of a court order. In the aftermath of the 9/11 attacks, Congress sought to improve the ability of intelligence agents to identify and monitor terrorism suspects. With the passage of the USA Patriot Act, it dramatically simplified the process for issuing NSLs and thus enabled the Federal Bureau of Investigation (FBI) to collect vast amounts of private data without a judge’s approval.1 Because Congress has renewed the Patriot Act multiple times since 2001, it has had ample opportunity to consider the merits of NSLs over a nearly fifteen-year period.
We find that legislators, in debating NSLs, consistently disregarded and misrepresented important issues. They demonstrated little understanding of the relevant laws, failed to collect basic policy information, and neglected to determine how authorities stored, shared, and analyzed captured data. With jurisdiction over the Patriot Act split across multiple committees, Congress conducted uneven, often superficial oversight of intelligence-gathering practices and only learned about widespread misuse of NSLs when the press reported on thousands of apparent privacy violations. Furthermore, Congress failed to pass straightforward reforms to curtail investigative abuses once they were known, relying instead on the executive branch to develop new safeguards. Even after major intelligence leaks by Edward Snowden prompted Congress to reconsider all surveillance authorized under the Patriot Act, legislators decided to ignore the long-standing problems with NSLs.
Overall, we conclude that Congress lacks the capacity to identify severe defects in counterterrorism policy and that it struggles, because of partisan polarization and institutional gridlock, to pass even modest privacy reforms. Unless Congress takes serious steps to improve its deliberative capabilities in this area, it will likely continue to mishandle surveillance policy and permit a largely unnecessary erosion of civil liberties. [End Page 448]
assessing congressional deliberations
Before we can evaluate deliberations on NSLs and the Patriot Act, we need to set out some criteria and standards for our assessment. The few scholars who have directly investigated legislative deliberation have employed sharply differing approaches.2 At one extreme, influential quantitative studies have used systematic content analyses of legislative debates...