When looking back at the past decade, it’s hard to think of a constitutional scandal that wasn’t first brought to the public’s attention by a leak to the press. Bush’s NSA warrantless wiretapping program, black site prisons, torture, CIA drone strikes, and offensive cyberattacks are just some of the examples.
Leaks, while controversial, remain vital to democracy when the government shuts off traditional avenues of transparency and accountability. And there has never been a better example of this than the recent revelations by NSA whistleblower Edward Snowden.
Unfortunately, many lawmakers have spent the last week criticizing Snowden’s actions rather than scrutinizing the programs he’s exposed and the system that led him to do what he did. In the past five years, the government has systematically cut off congressional oversight, Freedom of Information Act requests, and the federal courts as avenues to hold the NSA accountable. Similarly, whistleblower protection laws have provided no protection those like Snowden who might wish to bring abuses to light.
In Congress, the intelligence committees have teamed up with the Obama administration and rejected even modest transparency and oversight amendments to both the Patriot Act and FISA Amendments Act in the last two years, despite ample evidence of abuse.
In federal courts, the Justice Department has used a variety of procedural moves to prevent judges from ruling on whether the NSA warrantless wiretapping program is constitutional – including ‘standing,’ ‘sovereign immunity,’ and the pernicious ‘state secrets’ privilege.
Freedom of Information Act lawsuits about the secret Patriot Act interpretations (exposed by the Verizon court order) and secret FISA court decisions have been met with absurd and Kafkaesque arguments to prevent even the administration’s interpretation of a public law from being made public.
And importantly, Congress recently passed the Whistleblower Protection Act and purposely excluded government contractors like Snowden (of which there are more than a million). So if he went through official channels he would have been provided no protection, unlike what some misguided commentators have suggested. Snowden would’ve been stifled, fired, or worse.
These efforts, taken altogether, have meant these programs have stayed largely secret and out of the public eye for the last five years. But look at what has happened in just one last week since journalists Glenn Greenwald, Laura Poitras, and others, started publishing stories based on information given to them by Snowden:
--Senators confirmed the leaked Verizon FISA order is real, orders like it are “routine,” and that the NSA has been collected all American phone records for seven years —information the administration has fought to keep secret for since 2010.
--President Obama suddenly called for debate over the surveillance program, despite trying to cut off debate on the subject for years.
--Dozens of Congressmen said they did not know the full scope of the NSA’s domestic surveillance, despite the administration’s public claims that every member of Congress has been read in.
--In response to PRISM leak, DNI Clapper declassified portions of the program and explains how it relates to broad collection of data under section 702 of the FISA Amendments Act—which they’ve avoided for years.
--Both Google and Facebook publicly demanded that the government allow them to tell the public how many users are affected by secret FISA orders—something they should have done years ago.
--ACLU filed a lawsuit alleging the government collection of all American phone records under PATRIOT Act is unconstitutional, after having their prior suit over the FISA Amendments Act dismissed just moths ago for lack of evidence.
--Possible Congressional hearings about whether Director of National Intelligence James Clapper lied to Congress when he definitively told Congress the NSA was not gathering data on millions of Americans.
-- A group of eight Senators introduced a law requiring the FISA court declassifying some of its secret interpretations of law.
--Key lawmakers signaled their wish review the scope of the PATRIOT Act, including its author, despite renewing key sections with no oversight only two years ago.
--Many lawmakers plan to introduce a variety of legislation, and many groups plan to file lawsuits, regarding NSA spying in the coming days and weeks.
Now, those who wish to use the new revelations to instill permanent structural changes have a long way to go before the government gets there. And it’s possible the American people will simply choose to continue these programs, despite their Orwellian undertones. But the fact that this debate is finally happening, and that the Americans will—for the first time—be informed about what the government is doing in their name, cannot be understated.
Without Edward Snowden, none of this would be possible.