Of the many abuses that sprung from the Patriot Act’s toxic soil, the most pernicious and enduring is the growth of secret laws. The insistence that the government must not only keep its actions secret from the American public, but that the federal agencies will conceal the very rules they must follow, quickly spread like a noxious weed throughout our government. On the 20th anniversary of that misguided law, Congress has a long-overdue opportunity to root out secret law, and put it in the compost pile of history.
Today the battle over secret law is being fought on a new front, one that many Americans, including most of Congress, know virtually nothing about. I’ve worked hard to uncover how multiple federal agencies, including the Internal Revenue Service, the Department of Defense and Department of Homeland Security, have purchased Americans’ data without any court oversight whatsoever.
In some ways, the fight to uncover the scope of how the government buys American’s personal data tracks with my earlier efforts to first understand and then uncover the unprecedented mass surveillance abuses unleashed by the Patriot Act.
First, the government refused to share information — even with Senate Intelligence Committee members like me — about what it was doing under the Patriot Act. Then, as I and others warned publicly that the government was using the law in ways that would shock and anger Americans, intelligence officials in both the Bush and Obama administrations went on an out-and-out deception spree about mass surveillance.
It culminated in Director of National Intelligence James Clapper’s infamous public denial that the government collected data on millions or hundreds of millions of Americans, followed by revelations by The Washington Post and The Guardian, based on documents leaked by Edward Snowden.
The results were explosive. The revelations of secret dragnet surveillance marked a fundamental weakening in Americans’ ability to trust their government, and directly fueled many of the fantastical conspiracies peddled by Donald Trump and his allies.
Today the very same intelligence leaders who chose to conceal these programs and who most fiercely defended secret law are now echoing my calls for transparency.
“It became clear that the same secrecy contributed to the conditions that gave rise to the leaks in the first place. Too much secrecy in other words, puts at risk the very intelligence operations that require secrecy to be effective,” wrote a group of former intelligence officials, including Clapper, and former CIA Director John Brennan, in an amicus brief to the Supreme Court.
The revelations of secret dragnet surveillance marked a fundamental weakening in Americans’ ability to trust their government, and directly fueled many of the fantastical conspiracies peddled by Donald Trump and his allies.
Nevertheless, the habit of concealing laws from voters remains tightly entwined with government surveillance. One area I’m particularly concerned about is surveillance that happens outside of surveillance laws like the Foreign Intelligence Surveillance Act. Most people don’t realize that these laws cover only situations in which the government needs to compel carriers to cooperate. The rest of the time, surveillance is conducted under an executive order called EO 12333.
Conducting surveillance under an executive order means no court orders of any kind, no court oversight, no law governing what can be collected and how it can be used, and no public debates. There needs to be much more transparency about this collection — including three reports by the Privacy and Civil Liberties Oversight Board that Senator Heinrich and I have called to be released to the public.
A worrying example of secret laws and surveillance is the government’s purchase of Americans’ private records from data brokers. Dogged reporting and my own investigation have revealed concerning details about government data purchases in recent years. I have repeatedly pressed intelligence community leaders to share more information about this collection so Congress can have an open, fully informed debate about how to protect the privacy and constitutional rights of Americans.
That’s why I authored the Fourth Amendment is Not For Sale Act, which would stop the government from using a credit card to bypass Americans’ constitutional rights. It would require the government to go through the courts to acquire sensitive personal information about Americans, even if that information is held by a data broker or other third party. This law is absolutely vital to ensuring that the government doesn’t operate under two sets of rules, one governed by the public FISA law and the other based on secret executive order guidelines unaccountable to public scrutiny.
As government surveillance changes with technology and the evolution of new markets in private information, watchdogs in Congress and civil society have our hands full. There’s never a moment, even for members of Congress, when we can be assured we know everything. But that doesn’t mean abandoning the essential principle that liberty and security are not mutually exclusive. It means working harder and smarter to keep the American people informed about the laws we all live under. Vigilant oversight is a never-ending job — but an essential one to keep our democracy.