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  • Expanding U.S. Surveillance Powers:The Costs of Secrecy
  • Athan Theoharis (bio)

The terrorist strikes of September 11, 2001, traumatized the American public and provoked fears of future devastating attacks against the country. The George W. Bush administration exploited these fears to lobby Congress to enact legislation expanding the government’s surveillance powers. In this effort, administration officials claimed that the failure to prevent 9/11 was a result of limitations placed on the Federal Bureau of Investigation (FBI) and its surveillance authority. Expanding the FBI’s powers and changing its investigative priorities would enable the bureau to adopt, in the words of Attorney General John Ashcroft, a “proactive orientation” with the purpose of “early intervention and prosecution of acts of terrorism before they occur.” The FBI, as Ashcroft promised, would now be putting “prevention above all else.”1

The USA Patriot Act of 2001—the main legislative reform drafted in response to the terrorist attacks—provided the basis for the government’s new, expanded surveillance. On paper, the act’s core investigative provisions did not dismantle warrant procedures or undermine basic Fourth Amendment protections. Since the mid-2000s, however, a series of scandals have exposed the FBI’s broad, intrusive intelligence-gathering techniques and the National Security Agency’s (NSA) questionable domestic-spying programs. Over the last fifteen years, agents have seized enormous amounts of private data, recorded phone conversations, captured e-mails, and obtained sensitive photos of innocent Americans—all without court-sanctioned warrants. Some violations have been the result of poorly drafted legislation that included insufficient oversight mechanisms. To a great extent, though, agents have flagrantly ignored investigative restrictions in the Patriot Act and other key statutes. [End Page 515]

Surprisingly, although these revelations have fostered widespread public criticism, they have not led Congress to enact meaningful legislative reforms to avert further violations by intelligence agencies. This failure has been due in part to the failure of policymakers and commentators to put the revelations of FBI and NSA abuses in the historical context of past legal breaches by counterintelligence agents. Research based on formerly secret FBI and NSA records highlights that the recently revealed abuses were more predictable, more difficult to overcome, and more threatening to public dissent and democratic politics than currently appreciated.

the post-9/11 surveillance responses

The Patriot Act, among other measures, expanded the FBI’s ability to collect bank, credit card, and communication billing records and to monitor phone calls and emails. Some of the act’s most controversial surveillance provisions would automatically expire in four years unless reauthorized by Congress, suggesting that legislators would play a direct role in observing and, if need be, checking new surveillance activities.2 However, as the FBI used its new investigative powers in highly aggressive and expansive ways, the Bush administration took steps to stymie oversight of the bureau’s post-9/11 practices.

After the enactment of the Patriot Act, Justice Department officials repeatedly rejected requests from the House and Senate Judiciary committees for direct access to records documenting how this expanded authority had been used. Even so, Congress made many of these powers permanent in 2006. During the debate over reauthorization, members of Congress differed over whether these broad powers had been or would be abused. Of special concern were national security letters (NSLs)—subpoena-like orders—that allowed agents to seize financial and communication records without judicial approval. To allay doubts, Congress adopted a provision directing the Justice Department’s inspector general to conduct an internal review of “the effectiveness and use, including any improper or illegal use, of national security letters issued by the Department of Justice.” Under this provision, Inspector General Glenn Fine was directed to evaluate the FBI’s use of NSLs between 2003 and 2005 and to submit his conclusions to the appropriate congressional oversight committees.3

Fine released two reports based on his office’s investigation of the FBI’s use of NSLs, one in March 2007 and the second in January 2010. His reports disclosed that between 2003 and 2005, the FBI had issued 143,074 NSLs. [End Page 516] This total likely underestimated the FBI’s actual usage, first, because it was based on a...


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