In the immediate aftermath of the Snowden revelations America had a chance to make some real reforms to unconstitutional domestic spying programs authorized during the post-9/11 panic attack. A bill, proposed by Representative Justin Amash, was launched in the House to restore some of the country’s founding principles into the orientation of our massive enveloping surveillance state. The bill had promise and was picking up supporters until Nancy Pelosi and others helped kill the bill.
That was the tragedy, now comes the farce.
A new bill claiming to reform the NSA’s domestic spying program is making its way through Congress. Called the USA Freedom Act, the bill has now received the endorsement of President Obama, The New York Times, and the Electronic Frontier Foundation. Though its worth noting EFF is not wildly enthusiastic about the proposal. Nor should they be.
The USA Freedom Act is faux-reform. Rather than rolling back any substantive aspects of the encroaching surveillance state the bill will offer cosmetic concessions while knee-capping future (and possibly current) legal challenges to unconstitutional general warrant spying programs that trammel US citizens’ private information. At least previously people could argue in a court of law that Congress never authorized these programs for various reasons, after the USA Freedom Act passes there will be no doubt. Congress approves. As EFF itself notes, the bill not only legitimates current programs but goes farther and “appears to provide a path for the FBI to get permanent gag orders in connection with national security letters.”
And that’s the point. The bill is designed to legitimate illegal behavior while providing empty gestures on reform. The language alone in the USA Freedom Act makes intelligence program regulation the football Charlie Brown never gets to kick. Every word will be distorted and secretly interpreted under the current system.The bill does nothing to challenge the structural authority of the surveillance state which would make even clearer language also perilous.
So even if you believe some of the better proposals in the bill – how could anyone ever know they were really implemented? As long as there are secret courts empowered to make secret interpretations of our law we will never have real reform or transparency. The USA Freedom Act is an illusion, a magic trick performed to make opposition to the surveillance state disappear while keeping everything exactly in place.