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How Politicians Are Using ISIS to Preserve the Surveillance State

First it was al-Qaeda. Now it's ISIS. There's nothing like a new, distant threat to make people to forget they should care about their civil liberties.
Image: VICE News

In the aftermath of 911, the Bush administration, with Congress's help, used al-Qaeda and the persistent threat it posed to justify systematically setting up a surveillance state. Now, 13 years later, several lawmakers are using the threat the Islamic State poses—and Americans' fear of the group—to argue that the surveillance state should be preserved.

Edward Snowden's cache of documents showed just how institutionalized surveillance has become, and it seemed that the American public and lawmakers had finally come to say enough was enough. Al-Qaeda was quiet, there hadn't been a major terrorist attack on American soil since, well, 9/11, and people were sick of having their private communications read by government spies.


If people don't get what we're saying about the threats to our homeland now, shame on the Congress

And then the Islamic State started making noise in the Middle East.

James Foley, an American journalist, was very publicly and very brutally decapitated by IS terrorists. Then they killed another one. Then, a British aid worker. These senseless murders gave rise to a justifiable outrage and a justifiable fear.

But now, you have politicians talking in much the same way they did soon after 9/11, a period when counterterrorist groups like the NSA got whatever they wanted, no questions asked, and quickly.

"The passage of the USA PATRIOT Act was characterized by speed, haste, and, apparently, a complete lack of an informed national discourse, ostensibly motivated by the notion that crisis required expediency," Winston Nagan, a University of Florida law professor wrote of that period.

There's a lot at stake these next couple weeks: Congress could take a look at the USA FREEDOM Act,  a piece of legislation that reigns in much of the bulk surveillance that the Patriot Act allows. Or, it could let it die, and mass surveillance could live on. That seems to be the preferred stance of Sen. Lindsay Graham, who told the National Journal last week that it'd be foolish to pass FREEDOM at a time like this.

"If people don't get what we're saying about the threats to our homeland now, shame on the Congress," Graham said. "When you've got a terrorist that you're monitoring, I want to know who they're calling. I want oversight, I want judicial review. But now is not the time to degrade our capability to pick up an attack before it happens."


If we're looking for a needle in a haystack, let's make the haystack smaller, @SenThadCochran, & protect privacy. #StopSpying #USAFreedomA

— Liberty Coalition (@4yourfreedom) September 11, 2014

Graham is living in a fairy tale land if he thinks that "oversight" and "judicial review"  are things that the NSA has been concerned with these last 13 years. And it's rhetoric like that that got us in this mess in the first place; it's rhetoric like that that will preserve the surveillance state going forward.

"The mass surveillance programs of the NSA invade the privacy of millions of people, but the government has struggled to prove that those programs are actually helpful in preventing terrorist attacks," Rainey Reitman, activism director for the Electronic Frontier Foundation, told me. "We shouldn't let anyone use the threat of ISIS as an excuse to ratchet up surveillance on hundreds of millions of regular people, whether they are US citizens or not."

She's right: The 9/11 attacks were such a failure of US intelligence that the solution, at the time, seemed simply to be collecting   everything and worry about parsing through it later. Last year, even the White House admitted that the 'collect everything' strategy wasn't effective and had stopped literally no terrorist attacks.

That's why these next few weeks are so pivotal. Will Congress look at the surveillance state as a failed one? Or will it, tasked with stopping a new threat that Americans are afraid of, put it off until later?

"Previously we've taken a 'throw all the surveillance at a problem' approach," Amie Stepanovich, senior policy counsel with the civil liberties group Access, told me. "I think this is an opportunity to take what we've learned over the last 13 years and try to come up with targeted solutions to solve the current threat and prevent future threats."

At least this time, there are lawmakers like Ron Wyden who are willing to be a voice of reason, who realize that more isn't always better and that, oftentimes, more is worse.

"Sen. Wyden's view is that it is absolutely possible to keep America safe and to aggressively confront terrorist forces like ISIS without collecting information on millions of law-abiding Americans," a spokesperson for the senator told me. "He has seen that the intrusive overreach of these surveillance programs did nothing to make our country safer."