Intense government surveillance became normal after 9/11. Americans now say it’s too much

Michael Hayden remembers Sept. 11, 2001 differently than most — he was tasked with ensuring such a day never happened to America again.“Before 9/11, people would say, ‘Well, we can do it, but let’s not do it,'” Hayden told the Washington Examiner about surveillance tools. “‘It’ll be bad for the government. No, it’ll be bad for Congress. So, look, just don’t do it.'” “Now, after 9/11, I’m saying, ‘Oh yeah, we can do it,'” he said. “It’s okay.” FILE – President Bush, left, looks on as White House Chief of Staff Andrew Card, right, swears in Air Force Lt. Gen. Michael V. Hayden, center, as Deputy Director of National Intelligence in the courtyard of the New Executive Office Building of the White House, Wednesday, May 18, 2005 in Washington. Also on stage holding the Bible is Hayden’s wife Jeanine.(AP Photo/Pablo Martinez Monsivais) The country largely agreed with Hayden between late 2001 and 2003, when its wounds from 9/11 were most fresh, according to polling. Despite wanting some limitations on spying, majorities of American adults backed “expanded government monitoring of cell phones and email” and more rigorous airport screening, surveys from 2001 and 2002 said. A majority or plurality of respondents in other polls supported the Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, or the PATRIOT Act, which broadened the government’s permission to tap private communications without judicial warrants.The political climate is different today: 65% of Americans told Ipsos last year that “the government collects too much data about me,” while Morning Consult found 61% in March saying federal officials could not be trusted with artificial intelligence surveillance tools. Additionally, more Americans oppose police using automatic license plate-reading cameras than those supporting them, though the opposite was true last year, according to YouGov.Changing technology, the internet, and measures taken against terrorism have enabled the state to track Americans’ lives far more intimately than was conceived in 2001. The country now lacks consensus over an essential question the terrorist attacks raised: how can its leaders stop security threats most efficiently without robbing Americans of privacy?“Just because we’re afraid of one thing doesn’t mean we should ignore the threat of the other thing,” India McKinney, federal affairs director at the Electronic Frontier Foundation, told the Washington Examiner. The foundation has litigated digital privacy issues in court since Bush’s presidency and argues officials should have to obtain traditional warrants before accessing Americans’ data.“It used to be that if you wanted to track somebody, you had to pay a private investigator, and they had to go in real time, and it was expensive, and it was hard, and so you really only did it if you had a reason,” McKinney said. “And now you can just subpoena Google, or in some cases, you just ask nicely. You don’t even have to subpoena. And that’s the problem.”‘Some things the government has to do’ The federal government has been collecting private data on foreign targets for decades under the Foreign Intelligence Surveillance Act of 1978, or FISA. But before Bush, it previously needed warrants in FISA court if the search would scoop up the data of American citizens in contact with the foreign subjects.McKinney’s group and other plaintiffs sued the Bush administration and AT&T after discovering the government’s widespread warrantless spying with the tech sector’s tacit help. They repeatedly lost in appeals court, and Congress legalized Bush officials’ practices by passing FISA Section 702 in 2008.Privacy advocates won some measure of victory in a 2020 appeals court ruling, which found that the NSA had violated FISA via “bulk collection” of phone data from millions of Americans. Former NSA contractor Edward Snowden, now an exile in Russia, revealed the program in 2013 by leaking documents to the press.Americans still debate whether Snowden’s leaks were ethical, with Hayden telling the Washington Examiner that the country’s security apparatus “took two or three years to get back in the swing of things” due to disruptions he caused.Still, hawkish leaders have convinced Congress to reauthorize Section 702’s warrantless spying powers every few years — sometimes using 9/11 as a selling point.“Before that attack, well-intentioned policymakers had made the choice to build a wall preventing access to national security information sitting in our and our partners’ holdings,” former FBI Director Christopher Wray, a President Donald Trump appointee, told senators in 2023. “Allowing 702 to lapse or amending it in a way that undermines its effectiveness would be akin to laying bricks to rebuild another, pre-9/11-style wall.”The intelligence community also claims Section 702 spying has prevented overseas terrorist plots against Americans and helped the U.S. kill 9/11 plotter Ayman al Zawahiri in 2022. An FBI bulletin shows Osama bin Laden’s right-hand-man, Ayman al Zawahiri, wanted by the U.S. for his involvement with al Qaeda. (Credit: FBI) Trump likewise pushed for Section 702’s renewal in March during his war with Iran, abandoning his previous calls for FISA reform. “I am willing to risk the giving up of my Rights and Privileges as a Citizen for our Great Military and Country!” the president said in an April Truth Social post.Deciding between security and liberties has always been a “false choice,” said McKinney, who was in college when the Twin Towers fell and recalled the fear permeating the nation.“When something goes wrong, it’s very tempting as human beings to want to know exactly why and what we can do to make sure that this never happens again. And, you know, that’s a fair impulse,” she said.“When President Bush said that we have to give up some of these things, and President Trump said you have to give up some of these things in order to get security, that’s just simply not true,” McKinney told the Washington Examiner. “And again, ‘security from whom and security for whom’ are important questions.”McKinney pointed to an unsealed FISA court opinion from 2022 that found the FBI abused Section 702 tools more than 278,000 times over a few months, spying on subjects such as Black Lives Matter and pro-Trump protesters. The document gave Americans a rare glimpse into the program, as FISA court proceedings are typically secret.Hayden argues critics often do not understand the urgency driving the intelligence community, which is tasked with studying and responding to threats the general public never sees. “Every day there’s something going on,” he said about the job.“Some things the government has to do because if the government doesn’t do it, it doesn’t get done,” Hayden told the Washington Examiner.The discussion over proper intelligence tools is increasingly relevant as America now faces evolving dangers since 9/11, Hayden said.“All the time, it was al Qaeda and terrorism,” he said. “But this is different now. There are three or four things more important than al Qaeda and so on.”“When I talk about what’s going on in the world, the first thing I wanna say is ‘Let’s talk about China, okay?'” Hayden said. “Because that will be the most important part of … intelligence for 100 years.”Changing attitudes In an unprecedented move, Congress allowed Section 702 to lapse without reauthorization in June amid debate and deadlock. The spying program’s future is now uncertain, though agencies may still conduct searches that FISA courts approved before the phaseout.The lapse shows that rhetoric from security hawks does not hold as much sway as before, McKinney told the Washington Examiner. “I was utterly shocked,” she said.“When you don’t know details, I mean, it’s a scary alternative: ‘You do this or we risk another 9/11,'” the former congressional staffer said. “That’s really scary, and they weren’t falling for it this time.”Despite their differing views of government authority since 9/11, Hayden and McKinney both suggested that Americans embrace their ability to raise questions about it.FBI USED THREE UNDERCOVER SOURCES TO NAB NEW YORK WOMAN FOR ALLEGED TERRORISM PLOT“Many people in Congress don’t like 702,” Hayden said. “I know that. And by the way, they’re good people.” When lawmakers also criticized the Bush administration’s military actions, “it was okay because we were talking about it,” Hayden said.“My favorite part of the First Amendment is the right to petition Congress for redress of my grievances,” McKinney told the Washington Examiner. “And sometimes it works, and that’s really incredible. It makes me feel proud to live in this country.”