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The Week of National Security

Secrecy and a Free, Democratic Government Don’t Mix.

– Harry S. Truman

The week beginning June 1 was an exciting week for national security. The most exciting thing, of course, was that the Senate got back from its Memorial Day holiday and began working on a Sunday which is highly unusual. It did it because it knew it had less than 24 hours to complete work on an urgent piece of legislation. (It was so urgent that Members of the House finished their work before going on vacation. Senators decided to vacation first and legislate second.) The urgent matter pertained to preserving the right of government spies to collect Americans’ phone records in bulk.

Many Americans and members of Congress had no idea that the government was collecting phone records in bulk because that was a secret. It would still be a secret were it not for Edward J. Snowden. He let us know that unbeknownst to most of us inside and outside of government, the NSA had been collecting information about millions of Americans’ phone calls. A few members of Congress who served on committees dealing with national security knew of the practices but they believed their obligation to maintain confidentiality trumped any obligation they had to protect citizens from the NSA’s spying.

When Mr. Snowden disclosed the NSA’s activities, people in and out of Congress were furious. They were furious that it was going on and many of them were equally furious at Edward J. Snowden for alerting them to the practice. They said he was guilty of treason. That did not, however, keep them from demanding that the bulk collection of phone records be stopped.

The senators came back to work after their vacation with almost 18 hours left to protect the country from acts of terrorism. But then a strange thing happened. They couldn’t agree on how to deal with the bulk collection of phone records and at midnight on May 31, the NSA lost its authority to collect Americans’ phone records in bulk. It was blocked because of the actions of Senator Rand Paul who was concerned about the mass gathering of information about U.S. citizens by the NSA. As he said, when filibustering against proposed action by the Senate to permit the NSA to continue its bulk collection of phone records: “We already don’t catch terrorists with collecting all the data. So should we put television monitors in every house to try to prevent terrorist attacks? There is a zero sum game here that leads us down a slippery slope to where there would be no freedom left.”

Senator John McCain was a big supporter of the bulk collection of phone records by the NSA and was upset by Mr. Paul’s concern for the privacy rights of American citizens although that is not quite how he said it. He said Mr. Paul, (who hopes to become the next president) places “a higher priority on his fundraising and his ambitions than on the security of the nation.” Senator McCain said, without offering any evidence to support his statement, that letting the Act lapse “really does raise the risk to the public. It does eliminate one of the tools that the intelligence community has to identify homegrown terrorists.” Mr. McCain probably was unaware that on January 12, 2014 the Washington Post reported that an analysis of 225 terrorism cases inside the United States since 9/11 concluded that the bulk collection of phone records had “no discernible impact on preventing acts of terrorism.”

On June 2 the Senators put aside their differences and decided to follow the lead of the House and take the bulk collection of phone records away from the NSA and give it to the phone companies. (A side benefit of the act passed by the House is that the secret activities of the Foreign Intelligence Surveillance Court will become more transparent.) Those changes are applauded by those who like to see government’s intrusions into the private lives of its citizens curbed.

On the very same day that the Senate decided to act to protect civil liberties there was a report from the Inspector General that federal undercover agents had been testing the security of TSA checkpoints at the country’s airports. The report said that the agents made 70 attempts to get through airport security carrying fake bombs or fake weapons and successfully passed through security 67 times without being detected. One agent even had a fake bomb strapped to his back that was not detected in a pat down. One possible explanation for the ability of the agents to get through security is that the TSA inspectors are so sophisticated that they can distinguish between fake bombs and fake weapons. The other explanation is that they are not very good at what they do. That is the accepted explanation and within hours after the disclosure of the lapses, the acting head of TSA was removed from office and a replacement appointed.

It’s a pity that those managing TSA recognize the need to protect citizens travelling by air from terrorists whereas many members of Congress have a hard time recognizing the importance of protecting citizens from the erosion of their civil rights.

Christopher Brauchli is a lawyer in Boulder, Colorado.

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