Deliberating Surveillance Policy: Congress, the FBI, and the Abuse of National Security Letters

• Published in: Journal of policy history 2016-07, Vol.28 (3), p.447-469
• Main Authors: Bendix, William, Quirk, Paul J.
• Format: Article
• Language: English
• Subjects: Counterterrorism; Disasters; Intelligence gathering; Law enforcement; Legislation; Legislatures; National security; Policy making; Surveillance; Terrorism
• ISSN: 0898-0306; 1528-4190
• DOI: 10.1017/S0898030616000178

The chronic threat of terrorist attacks, with potential for catastrophic harm, imposes extraordinary challenges on policymakers. To serve the country's interests responsibly and effectively, they have to provide enhanced security against varieties of threat that the country rarely contemplated, much less encountered, before September 11, 2001. In particular, they have to enable government authorities to prevent the worst attacks on civilian targets before they occur--not just apprehend and punish those who have already committed crimes. At the same time, competent policymakers need to protect deeply valued, constitutionally established rights and prevent security measures from undermining democratic politics. A government that can investigate citizens without constraints and can apprehend merely suspected potential criminals can also use these powers to intimidate dissenters and stifle criticism. It could use such methods not only to suppress dissidents or radical movements but even to weaken and subordinate a mainstream opposition party. At the extreme, partisan abuse of investigatory authority could lead to a Putin-style, one-party democracy. Unless policymakers find ways to reconcile dramatically expanded security capabilities with robust political liberties and privacy protections, the health of American democracy is at risk. Reconciling the interests in security and privacy requires competent deliberation on surveillance policy and thorough oversight of intelligence practices. Both responsibilities fall primarily to Congress. But does Congress have the capacity to perform these tasks? Does it use information and analysis competently and weigh the relevant concerns in a balanced, discriminating way? Or do legislators distort deliberations either to pursue ideological agendas or to pander to public fears? Under what circumstances do legislators perform their deliberative tasks better or worse? And does the quality of congressional deliberations ultimately shape policy outcomes? To answer these questions, we examine congressional deliberations on national security letters (NSLs). NSLs are a means authorized by law for investigators to obtain an array of private records on U.S. persons, often from third parties--such as banking statements, phone records, credit reports, and so on--without the requirement of a court order. In the aftermath of the 9/11 attacks, Congress sought to improve the ability of intelligence agents to identify and monitor terrorism s