Surveillance in Marble

The government is finally reforming its data collection practices. But it needs to do more.

'With Surveillance Camera' by Ai Weiwei

Ai Weiwei’s replica surveillance camera on display at the Lisson Gallery in London on May 12, 2011.

Photo by Ben Stansall/AFP/Getty Images

In October 2012, less than a year before the Snowden revelations, a small sculpture arrived at the Hirshhorn Museum in Washington, D.C. It was a surveillance camera—a replica of the cameras that Chinese officials had stationed around the home of Ai Weiwei, the artist. He carved it in marble. Dull white and a little more than a foot tall, the sculpture sat, largely unnoticed, until the end of its exhibit in late February 2013.

Three months after the show ended, the Guardian published the first of many classified documents revealing a scope of domestic surveillance previously unknown in American history.

In retrospect, the sculpture was a strangely appropriate omen. In art, like in architecture, marble is the language of legitimacy and power: The Supreme Court is made of marble; the Department of Motor Vehicles and 7-Eleven are not. The force of Weiwei’s sculpture was not that it was a surveillance camera. The force of it was that it was made of marble.

Likewise, in the steady drumbeat of ever-more-startling revelations about domestic and international spying, it’s easy to lose sight of a far more troubling fact: that every branch of our government actively—and repeatedly—authorized the ubiquitous monitoring of the entire American population. Pervasive surveillance is no longer a dirty trick or wartime excess. It’s an institution.

After contentious debate, a surveillance reform bill called the USA Freedom Act will soon reach the president’s desk.* The bill will end the government’s dragnet collection of Americans’ phone records. But will it prevent future abuses of power? Will it give Congress the tools it needs to avoid the next surveillance scandal?

These are more difficult questions. The bill will make the secret intelligence court fairer and more transparent. It will also require the National Security Agency to provide an annual accounting of how many people are caught up in the reformed call-records program—and how many searches it runs in several pools of data that it has. These are significant steps forward.

Unfortunately, there is nothing in the bill to ensure that all members of Congress—and their staffs—have the access they need to fully understand the truths behind the government’s secrets. This is a mistake.

Just three days after Edward Snowden’s first revelations about the NSA, something extraordinary occurred. The author of the law that the NSA claimed authorized its call-records program said that the law did no such thing—and denounced the program as an “abuse” of that law, the Patriot Act. The member of Congress, Rep. Jim Sensenbrenner of Wisconsin, also said that he had not been briefed about the program and that neither had “most” of his colleagues. This contradicted President Obama, who had just assured the public that “Congress is continually briefed on how these [programs] are conducted.”  

Last month a federal appeals court in New York weighed in on the matter. It sided with Sensenbrenner. The Obama administration did give briefing memos on the call-records program to key congressional committees. But as the court pointed out, members could see those documents only during limited times, and usually without their staffers. What’s more, in 2011, when Congress voted to renew parts of the Patriot Act, the House Permanent Select Committee on Intelligence failed to share those documents with anyone not on that committee—leaving all other House members in the dark. In 2011 there were 435 voting members of the House of Representatives. Twenty of them were on the House intelligence committee.  

The memos may not have made a difference. One briefing memo from 2009 said that the call-records program “was authorized to collect in bulk certain dialing, routing, addressing and signaling information about telephone calls[.]” This is like saying that the IRS is authorized to collect certain tax returns. Only halfway through the memo does it reveal, midsentence, that the NSA was collecting “substantially all” call records—i.e., almost every call made by every American, every minute of every day.  

It doesn’t seem like in-person briefings were much better. Rep. Justin Amash of Michigan described them as bizarre games of 20 questions:

[Y]ou don’t know what questions to ask because you don’t know what the baseline is. You don’t have any idea what kind of things are going on. So you have to start just spitting off random questions: Does the government have a moon base? Does the government have a talking bear? Does the government have a cyborg army?

My money is not on the cyborg army. But Amash highlights a disturbing trend: Increasingly the executive branch doesn’t just keep secrets from the American people; it keeps them from Congress, too. Amash’s statements also indirectly speak to a related problem that gets much less attention: a shortage of staffers with the right security clearances to help their members understand and vote on national security matters.

When Edward Snowden went public, I was serving as chief counsel to the Senate Judiciary Subcommittee on Privacy, Technology, and the Law. In the days that followed, I could not count the number of my colleagues who reported that no one on their staffs had a high enough clearance to brief their bosses on the NSA scandal—or to learn about NSA surveillance in the first place.

Our Founding Fathers designed our government with a system of checks and balances. “Ambition must be made to counteract ambition,” wrote Madison. But a thick cloak of secrecy around our national security apparatus threatens to break that system. Congress cannot check what it cannot see or understand.

Unfortunately, what happened with the NSA is part of a pattern. In fact, the NSA scandal is not even the latest instance where excessive secrecy crippled Congress’ ability to conduct effective oversight on a national security matter.

One of the key conclusions of the torture report released last December by the Senate Select Committee on Intelligence was that the CIA actively impeded congressional oversight. “Enhanced interrogation” techniques were first approved in August 2002; for the next four years as 117 detainees passed through CIA custody, the CIA repeatedly refused to brief the full Senate intelligence committee about their interrogations—and largely restricted its briefings to just two senators: the chairman and the vice chairman of the committee.

Rarely do we connect the NSA and torture scandals. In fact, they are both symptoms of the same disorder: an addiction to secrets.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.

*Update, June 2, 4:38 p.m.: This article was updated to reflect that the USA Freedom Act passed the Senate without amendments. (Return.)