In aftershock of leaks, reformers take a stab at NSA powers

Updated
A commuter walks through the main concourse of Grand Central Terminal, also known as Grand Central Station, in New York March 5, 2012.
A commuter walks through the main concourse of Grand Central Terminal, also known as Grand Central Station, in New York March 5, 2012.
Adrees Latif/Reuters

For the first time since the Patriot Act was passed in the aftermath of the 9/11 attacks, legislators and civil liberties advocates are convinced that public opinion and political momentum is on their side in the debate over privacy and security.

“I think reform is coming,” says Democratic Rep. Adam Schiff of California. “It’ll take time to determine exactly what form it will take, but I think there is an inexorable move towards greater transparency of the FISA Court and greater restructuring of the surveillance programs.”

The key priorities for reformers are narrowing the authority granted in section 215 of the Patriot Act, which allows the government to seize business records deemed “relevant” to a terrorism investigation—the same justification used in a leaked FISA court order authorizing the NSA to obtain millions of Americans’ phone records—and making the secret FISA court more transparent. Past efforts at curtailing government surveillance powers have gone down in defeat as legislators, frequently ill-informed about the scope of national security laws, have relied on party leaders for guidance.

Here is a rundown of some of the proposals, not all of which have been introduced as legislation:

Reining in Section 215 of the Patriot Act: Democratic Senator Patrick Leahy of Vermont and Congressmen John Conyers, a Democrat from Michigan, and Justin Amash, a Republican from Michigan, have proposed adding new restrictions to Section 215 of the Patriot Act. Though the Senate and House proposals differ on the details, both plans place greater limits on how much the government can and ensure that the government is seeking records that are relevant to an investigation. Leahy’s bill encompasses a prior proposal put forth by Senators Wyden and Democrat Mark Udall of Colorado; Senator Bernie Sanders, an Independent from Vermont, has also put forth a similar bill.

Declassifying FISA Court opinions: The Foreign Intelligence Surveillance court doesn’t just approve surveillance requests, it also reaches opinions about the breadth of national security law, and it does so in secret. Proposals by Democratic Senator Jeff Merkley of Oregon and Republican Mike Lee of Utah, along with Democratic Rep. Adam Schiff of California and Republican Rep. Todd Rokita of Indiana, would compel the government to declassify significant FISA court opinions. The proposals would still allow the government to keep certain opinions secret as long as the attorney general gives Congress an explanation.

Allowing private companies to retain communications records: Rather than allow the National Security Agency to hoover up communications records, legislators are considering a proposal that would allow private companies to retain them instead. The idea is that this would make NSA’s requests more narrow and specific, but the devil is in the details. Obama officials recently testified that the NSA can snoop through the records of individuals at least three “hops” from the target of a query, which means a great deal of information could still be obtained without a warrant on innocent people.

Public Advocate before the FISA Court: As described by a former FISA Court judge, Congress could create a position for an attorney who would “challenge the government when an application for a FISA order raises new legal issues.” Civil liberties groups are somewhat skeptical of this idea, however, out of fear that a secret advocate arguing secret law before a secret court would at best entrench bad policy, and at worst add another rubber stamp to the process.

Confirming FISA Court Judges through the Senate: Rep. Schiff has proposed making the judges who are appointed to the foreign intelligence surveillance court subject to Senate confirmation. Currently, judges on the FISA court are appointed by Chief Justice John Roberts, and 10 of the 11 judges currently on the FISA court bench were Republican nominees. Schiff thinks this would add more ideological diversity to the secret court’s bench. Civil libertarian groups aren’t entirely sold on the idea however, because they’re skeptical that a Senate committee process would change much.

For their part, civil liberties groups aren’t bullish on all of the proposals, but they’re delighted to see so many members of Congress focusing their attention on the issue.

“I can’t crystal ball what’s going to happen this year, but I think it’s definitely going somewhere,” said Michelle Richardson of the ACLU. At the same time, she said, Congress should avoid reforms that simply “add more legitimacy to an already broken system.”

In the months since Edward Snowden revealed the scope of US surveillance programs to The Guardian and the Washington Post, the tone in Congress has shifted from the typical strident defenses of broad government authority in fighting terrorism to a growing, bipartisan cacophony of criticism. While the leadership of both parties remains largely supportive of broad surveillance authorities, upstarts in both parties have begun rocking the boat in the name of bringing greater transparency and oversight to US surveillance policy. A shift in public opinion and constituent concern has emboldened lawmakers, according to legislative aides.

Longtime advocates of curtailing government surveillance authority have recently found themselves with unexpected allies. Republican Rep. Jim Sensenbrenner of Wisconsin, one of the authors of the original Patriot Act, warned Obama officials during a House judiciary committee hearing last week that—unless the administration stopped using Section 215 of the law for bulk collection of Americans’ communication records—they would “lose [the authority] entirely.” Sensenbrenner was far from the exception at the hearing, with legislators from both parties subjecting Obama officials to harsh criticism over recent revelations about the breadth of government surveillance.

“If you closed your eyes and didn’t know who was speaking it would be difficult to tell whether the member speaking was a Democrat or Republican,” says Will Adams, a spokesperson for Republican Rep. Justin Amash of Michigan. Amash has joined with Michigan Democratic Rep. John Conyers to add an amendment to a defense funding bill that would curtail the government’s ability to obtain records under section 215. In a signal of how the conversation around NSA surveillance has transformed, an aide to Sensenbrenner, who calls himself “the author of the Patriot Act,” said he is expected to vote for the Amash/Conyers amendment. The amendment might not make it into law even if it passes the House, but it’s only one of the first of many efforts to rein in government surveillance that reformers have planned.

During his appearance at the Center for American Progress Wednesday, Wyden said he hadn’t seen the Amash/Conyers amendment but that he was happy to see movement towards reform in the House. “If we do not seize this unique moment in our constitutional history ,” Wyden said, “we are all going to live to regret it.”

In aftershock of leaks, reformers take a stab at NSA powers

Updated