Intelligence officials are already pressing their case in the aftermath of the France bloodshed
Though the administration has not directly asked for any new powers, privacy advocates are worried
The intelligence community – on defense since revelations of massive domestic surveillance surfaced in 2013 – might have an opening to become more assertive after the terror attacks in Paris.
Intelligence officials are already pressing their case in the aftermath of the France bloodshed – and getting support from prominent politicians who only recently avoided bringing up the controversial topic in conversations about national security.
The shift is alarming privacy activists and threatens to deny some presidential candidates an issue that has served as a major rallying cry for their campaigns: imposing limits on government spying programs in the wake of former National Security Agency contractor Edward Snowden’s leaks.
CIA Director John Brennan on Monday called the Paris attacks a “wake-up call” on the importance of intelligence collection, decrying reforms as obstacles to his job.
Brennan said at the Center for Strategic and International Studies’ Global Security Forum that due to “unauthorized disclosures” and “handwringing,” some policy and legal steps have been taken “that make our ability collectively, internationally, to find these terrorists much more challenging.”
FBI Director James Comey has also been on a year-long campaign against unbreakable encryption in technology, saying that businesses offering devices that the companies themselves can’t break – even with a court order – is a major challenge for law enforcement and counterterrorism.
Comey reiterated the call in a speech on Wednesday, saying ISIS recruits people on social media and then moves to encrypted channels to communicate about having them carry out plots.
“And at that moment, the needle (in the haystack) we’ve been searching the entire nation to find, and have found, goes invisible to us. That’s the ‘going dark’ problem,” Comey said.
Such positions have always had their political backers. But as the country has moved farther away from September 11, 2001, and in the aftermath of Snowden’s revelations, government surveillance has faced increasing opposition and less popularity.
This spring, an overwhelming bipartisan majority of Congress passed the USA Freedom Act – signed the same day by President Barack Obama – ending the bulk collection of phone metadata and reformed surveillance practices.
Renewed concern on terrorism
But the devastating attacks in Paris that killed more than 120 people and injured hundreds more have generated a renewed concern about the ability of terrorists to avoid detection by authorities.
The intelligence community is picking up prominent supporters on both sides of the aisle now, as 2016 presidential candidates race to project strength in the face of terrorism.
GOP hopeful Florida Sen. Marco Rubio has signed onto a bill that would delay the enactment of the surveillance reform law, set to take effect at the end of this month, until 2017.
Democratic front-runner Hillary Clinton on Thursday took a hawkish position on law enforcement’s concerns with encryption, echoing Comey’s position that tech companies should work with the government to come up with a solution.
“We need Silicon Valley not to view government as its adversary,” the former secretary of state said.
Though the administration has not directly asked for any new powers, aside from continuing the encryption conversation, privacy advocates are worried.
The sentiment has been strong in France, where the government is set to extend a state of emergency for three months, giving police more authority. France also passed a law earlier this year expanding its surveillance program to intercept communications.
The comments by Clapper and Comey have raised red flags for the privacy advocates in the U.S., who have battled surveillance techniques since before the Snowden disclosures.
Kevin Bankston, director of New America’s Open Technology Institute, said officials often use moments like this to get things checked off their wish lists.
“It’s horribly disappointing, but unsurprising, that law enforcement and intelligence officials would use the opportunity by the Paris attacks as an excuse to push for whatever new powers they were already asking for,” Bankston said.
“It’s a part of their playbook and it’s how we ended up with the Patriot Act,” he continued, referring to the post-9/11 law that offered much of the legal justification for the controversial bulk collection program exposed by Snowden’s leaks.
He charged that the Justice Department already had greater surveillance powers drawn up and immediately pulled them out “as soon as the (Twin) Towers” fell to appeal to lawmakers “desperate” to respond to the attack.
“That’s exactly what’s going on now,” he said.
Privacy advocates maintain that the reasons expanding surveillance and weakening encryption were bad ideas before the attacks are still valid.
They note that the same technology that terrorists exploit is used by human rights activists in oppressive regimes.
And, they argue, most encryption technology is open source, meaning anyone can develop and use their own protected platforms, whether the government clamps down on tech companies or not.
“The political atmosphere has changed, but the facts about the surveillance proposals that might be made haven’t,” said Greg Nojeim, senior counsel at the Center for Democracy & Technology, who said the relaxing of the encryption standard by tech companies that the government seeks will be harnessed by good and bad elements alike.
“Eventually, this proposal will be rejected once again,” he predicted. “Fact is, that the bulk domestic collection of telephone records didn’t thwart a single terrorist attack. That fact hasn’t changed. The program will and should be ended.”
The government takes a different view, however. Then-NSA chief Gen. Keith Alexander testified in 2013 that U.S. surveillance broadly had stopped more than 50 terrorist attacks, but only disclosed four such cases, with the others remaining classified.
Jamil Jaffer, a former lawyer for the House intelligence committee and the George W. Bush White House, defended the intelligence community.
He said it’s not that security officials are looking to take advantage of a political opportunity, but that the situation needs reassessment since the landscape has changed.
“We have voluntarily walked back some of our laws, and I think in a heightened threat environment, if you want the intelligence community to collect and act on threat information, you need to give them appropriate capabilities,” he said, referring to the law instated this spring and the President’s own executive actions walking back some surveillance.
He added, “That desire for more information has to be balanced, as it always is, with privacy and civil liberties. And it’s a natural shift in favor of security when a terrorist attack happens.”
Issue heats up in presidential race
Candidates themselves had already been divided by national security and to what extent the government should use surveillance. The highly charged climate after Paris is heightening those differences as candidates look to score points.
Texas Sen. Ted Cruz and Kentucky Sen. Rand Paul, both running for the GOP presidential nomination, have been outspoken critics of broad government surveillance and helped spearhead the effort in Congress to reform it – with Cruz co-sponsoring the USA Freedom Act in the Senate. That position had helped propel them within the libertarian wing of the party and was attractive to younger conservatives.
But now they find themselves on the defensive amid concerns that terrorists can slip through the cracks and as criticism that the government has not done enough to stop ISIS increases.
They are facing off against candidates like former Florida Gov. Jeb Bush, who has explicitly called for reinstating the National Security Agency metadata collection program that Congress rolled back this spring under the USA Freedom Act as he has tried to stake out a strong national security platform in the wake of the Paris attacks.
Rubio, the freshman senator from Florida, has seen an opportunity to knock back rival Cruz, as the two increasingly seem to be on a collision course for the presidential nomination.
After signing on to Arkansas Sen. Tom Cotton’s bill delaying surveillance reform, Rubio attacked Cruz for sponsoring the USA Freedom Act in an interview with conservative radio host Hugh Hewitt on Wednesday.
“He was part of that coalition that worked with the Democrats, like (New York Sen.) Chuck Schumer and the ACLU, to harm our intelligence programs,” Rubio said, referring to Cruz’s reform effort.
But those who oppose enhanced government surveillance aren’t backing down, so far.
Cruz defended his position against Cotton’s bill and in authoring the USA Freedom Act Wednesday evening, saying he was “proud” of the legislation.
“I’ve spent my whole life fighting to defend the Bill of Rights and the Constitution,” Cruz said Wednesday at Washington Examiner’s teleforum. “I believe it is possible for the federal government to do two things at once: to protect the constitutional rights and privacy of law-abiding citizens, and at the same time to target the bad guys and go after terrorists.”
He noted the bill was supported by the administration, intelligence community and a majority of Congress.
Cruz predicted that Congress wouldn’t revisit the reform law despite Cotton’s effort.
Paul said he’s not changing his position in the wake of the attacks, either, offering some choice words for those who want to roll back the reforms.
“So when they stand up on television and say the tragedy in Paris means you have to give up your liberty (and) we need more phone surveillance – bulls–t!” Paul said at George Washington University Thursday.
On Fox News on Wednesday, Paul said France is actually an example of why more surveillance doesn’t mean more security.
“France has a program that invades privacy 1,000 times more without restraint and it didn’t stop this,” Paul said, adding that if Americans give up their liberty, “What are we fighting for?”
It’s not just Republicans seeking to show resolve against terrorism – or who oppose more surveillance. Clinton’s encryption comments delivered in a major address on her plan to fight ISIS on Thursday are out of step with many members of her party in Congress, who have been outspoken against the impulse to weaken encryption.
Ultimately, privacy advocates Nojeim and Bankston agreed with Cruz that the calls for strengthening intelligence collection won’t succeed, with Nojeim calling it “smoke” and Bankston calling it “posturing.”
With supermajorities of the House and Senate voting to rein in surveillance just a few months ago, and with precious few legislative days left this year, it is unlikely the shifting winds could blow strongly enough to reverse that trend.
“Policymakers will eventually see through it,” Nojeim said.