Edward Snowden was the first to declare victory. On Monday night, the Obama administration had, via the New York Times, announced the imminent end of the bulk collection of metadata and proposed new rules requiring the National Security Agency to get warrants before grabbing individual records. It was far less than what civil libertarians had wanted. But Snowden called the White House announcement a “turning point” and the “beginning of a new effort to reclaim our rights from the NSA.”
The race to the bandwagon had begun. By Tuesday morning the Republican-run House Intelligence Committee was polishing and promoting the End Bulk Collection Act of 2014, which would grudgingly achieve much of what the White House grudgingly asked for. On Tuesday afternoon, Sens. Rand Paul, Ron Wyden, and Mark Udall strolled into a Senate hallway bustling with reporters to accept the NSA’s partial surrender.
“When the executive branch says you’ve got to collect millions and millions of phone records of law-biding people, we said no,” said Wyden. One year ago he’d asked Director of National Intelligence James Clapper about metadata collection from “law-abiding Americans” in an open hearing. Clapper said it didn’t happen. Snowden proved him wrong. Clapper had never quite recovered.
“It’s very clear now that the administration agrees with us,” said Wyden. “After all these years of saying that collecting these records are vital to Western civilization, they’ve concluded that it’s not.”
“They’re looking for congressional permission to stop doing what they’re doing,” said Paul, who was still suing the administration over the metadata trawling. “They never got congressional permission in the first place. There’s nothing forcing them to keep collecting data.”
“The Congress ought to codify what the president’s done so the message is sent to future presidents,” said Udall, who faces re-election in a swing state this year. “But this administration could go and implement what they’re proposing, today.”
“This is the start of the end of dragnet surveillance in America,” said Wyden.
“Turning off the vacuum cleaner,” added Udall.
It was exactly what the administration and the NSA’s defenders wanted to hear. They’d never wanted to end metadata collection. They defended it for months. Rep. Mike Rogers, the chairman of the House Intelligence Committee, had pulled up to many Sunday show tables to argue that the program was safe, and legal, and that its opponents were ignorant defenders of the treacherous Snowden.
“I passionately believe that this program saved American lives,” said Rogers at an hourlong press conference with Rep. Dutch Ruppersberger, the committee’s ranking member, where they outlined their bill to end bulk metadata collection. “All of the reviews, and I mean all of the reviews, from the IG to congressional review to the presidential review panels, found no misuse of this program. But Americans need to buy into this. … I started out with, maybe we ought to stick with the program that has been tested, legally overseen, and protects civil liberties. Well, we’re beyond that. We get that.”
If it was a “turning point,” as Snowden suggested, it was one that the administration and its critics both needed. The congressional and civic outcry against the NSA started and basically ended with the revelations of domestic snooping. That wasn’t where the Snowden revelations ended. Day after week after month, newspapers were using the Snowden documents to detail American spying in foreign countries. This was costing the American tech industry billions of dollars, maybe as much as $180 billion.
Rogers and Ruppersberger, and the administration, wanted to restore American credibility. Domestic surveillance reform was the only attainable idea, even if it barely addressed most of Snowden’s leaks. The reform, said Ruppersberger, would “set an example,” while “at least a year’s” worth of Snowden revelations continued to trickle out. The world outside would see that America was doing something about surveillance, and their own governments weren’t. Hey, it could work.
“The French, just recently, passed a measure so that you don’t even need a court order to get personal data stored on their systems in France,” said Rogers. “Espionage is a French word, after all.”
That line got a couple of laughs, but Rogers meant it. “We should get over the shock and awe of all of this and have an honest dialogue about what is exactly happening,” he said. “Europeans spy on the United States of America, sorry, every single day.” Multiple times, when reporters asked Rogers why Congress wasn’t reforming any of the programs that worried foreigners, the congressman accused the press of overhyping stories and possibly being suckered by bad intelligence. Snowden, who Rogers only referred to as “the former NSA contractor,” had created “confusion on legal programs he had no understanding of,” and then fallen into Russia’s grip.
“There’s a lot of intelligence officials today who have to go back and, [with] every new revelation, knowing he’s under the influence of Russian intelligence, scrutinize it 10 times more than they did,” said Rogers. “A lot of people take it as gospel. I assure you, it’s not.”
“I would love to have Russia’s Snowden come over here and give us all the data he found,” said Ruppersberger.
These were the congressmen who were now backing the end of bulk metadata collection. The civil libertarians could accept that, because they knew what to go after next. Paul, who had just returned from a well-received and widely-covered anti-spying speech in Berkeley, Calif., openly derided the arguments he expected to hear next.
“They will say, we have these privacy controls that da-da-da-da,” said Paul, replacing the intelligence community’s jargon with nonsense syllables. “We’re going to do da-da-da-da. But the records are not protected by the Fourth Amendment. This is still a big question. I think it will still have to be decided by the Supreme Court.”
But that sets up a sort of détente. The civil libertarian campaign would continue. The campaigners would give their blessing to incremental reform. The skeptics would go along with the reform, because they know how quickly the conversation can shift.
“Substantively, are we retaining the ability to deter these attacks?” asked Sen. Lindsey Graham. “We’re one attack away from this completely changing the focus.”