In the wake of Edward Snowden’s NSA leaks, members of Congress have proposed a litany of bills to put an end to domestic spying. Rather than creating bills that support each other, Congressional members’ multiple bills now have to compete against each other, and have clouded the debate.
The sustained grass-roots uproar over domestic surveillance has reached the ear of Congress, which is considering more than a dozen legislative measures to curtail the National Security Agency’s various programs that spy on Americans en masse. While most address merely the pieces of the problem, one in particular would address the many facets hidden even in the wake of the Snowden leaks.
Strange bedfellows have coalesced in Congress to restore fundamental rights, including representatives of each of the major political parties. With a bipartisan establishment facing off against populists in each party responding to the outrage among their constituents, rarely has Washington presented so fascinating a drama.
While the controversy surrounding dragnet domestic spying portends the inevitability of fundamental reforms, the only bill commensurate with mounting transpartisan outrage remains politically marginal. Meanwhile, meager proposals proliferate, skewing the debate and potentially undermining the possibilities of meaningful restrictions on NSA spying.
Rather than coalesce around shared proposals, members of Congress have instead clouded the debate by introducing a growing litany of bills that could potentially compete with, rather than support, each other.
Transparency without substantive reforms
Several bills present relatively weak alternatives by merely expanding transparency at the margins. For instance, the “Ending Secret Law Act” (SB 1130 and HR 2475) sponsored by Sen. Jeff Merkley, D-Oregon, and Rep. Adam Schiff, D-California, would require the disclosure (of at least summaries) of the secret FISA court’s classified opinions that currently remain hidden from Congress and the public. Rep. Sheila Jackson-Lee, D-Texas, introduced an essentially identical measure in HR 2440 , the “FISA Court in the Sunshine Act of 2013.”
Revealing the substance of FISA court opinions to the public is crucial, given the court’s modus operandi of undermining constitutional principles in secret. Disclosure alone, however, does not restore any of the legal principles eroded over the past decade. And while these proposals would at least require summaries of even classified opinions, they leave the decision over what level of disclosure to the executive branch, which has proven its unreliability.
Other proposals also aim to expand transparency, not by revealing secret judicial opinions but rather by requiring additional disclosures from the executive branch. While helpful, like the disclosure bills, none of these suffice, either.
Rep. Rick Larsen, D-Washington, introduced the “Government Surveillance Transparency Act of 2013” (HR 2736), which would require corporations and government agencies to disclose aggregate data about their surveillance practices. Sen. Al Franken, D-Minnesota, has introduced a bill (SB 1452) to require greater disclosure and allow voluntary disclosure by private entities.
Like the “Ending Secret Law Act,” the Larsen and Franken bills would claw at the margins of NSA secrecy, without doing anything to actually restrain its abuses.
Transparency with some minimal substantive reforms
Rep. Stephen Lynch, D-Massachusetts, introduced the “Telephone Surveillance Accountability Act of 2013” (HR 2684) to force disclosure, as well as minimal judicial oversight. In particular, the bill requires the FBI director to compile a report for the Senate and House intelligence committees about searches of telephone metadata. It also requires the government to demonstrate that its metadata search requests are justified by reasonable suspicion of material facts specifically relevant to an authorized investigation.
The Lynch bill, however, is underinclusive: It regards only telephony metadata and does nothing to curtail internet spying under the PRISM or XKeyScore programs, for instance. It apparently was drafted in response to the particular problems revealed in the first of the now several memos disclosed by journalist Glenn Greenwald and whistleblower Edward Snowden but fails to address the vast remainder of other NSA’s domestic spying activities.
Second, even the reasonable suspicion standard can be abused. Just ask New Yorkers, who for years have challenged an abusive stop-and-frisk search program by the NYPD. The Supreme Court empowered police to stop and frisk pedestrians for weapons in 1968, but even the Terry v. Ohio decision maintained the need to demonstrate reasonable suspicion before doing so. The NYPD’s answer to that limitation has been to consistently claim that its targets (overwhelmingly people of color) make “furtive movements” justifying police intrusions.
The “Restore Our Privacy Act,” (SB 1168) introduced by Sen. Bernie Sanders, I-Vermont, goes several steps farther. First, it requires the government to provide “specific and articulable facts” supporting each and every object of a Section 215 order, which currently address multiple sources. For instance, the single court order disclosed by Greenwald authorized the government to monitor every Verizon business customer across the country, including the organization I lead, the Bill of Rights Defense Committee (which is why we’re represented by the Electronic Frontier Foundation in a lawsuit challenging NSA programs).
The Sanders bill also would limit the purposes of surveillance to specific FBI investigations of international terrorism, preventing intelligence powers from being used by law enforcement agencies.
Reforming the rubber-stamp secret FISA court
Other proposed bills would reform the appointment process for judges to the secret FISA court. Imposing fundamental changes to constitutional principles in secret, while hearing only one side of each case, the so-called “court” has endured well-deserved criticism for failing its constitutional responsibility to check and balance the executive branch, instead becoming a rubber stamp that ultimately has eroded judicial legitimacy.
The court’s predilection for favoring the government is predictable: the judges are appointed unilaterally by the notoriously conservative chief justice, whose history of service in the executive branch predisposes him, and the judges he hand picks, to favor the government. Chief Justice John Roberts has voted time and again to insulate intelligence and police agencies from constitutional limits, such as in Clapper v. Amnesty International, which this spring turned the court’s blind eye to precisely the issues raised by the Snowden leaks.
The Alliance for Justice has criticized both the unilateral appointment power of the chief justice and the pro-government bias of the particular judges who serve on the court. Its new report explains why “this concentration of power is unlike anything else in our democratic system of checks and balances.”
Accordingly, several proposed bills would reform the process for appointing judges to the secret FISA court, including SB 1460, introduced by Sen. Richard Blumenthal, D-Connecticut, the “FISA Court Accountability Act” (HR 2586), introduced by Rep. Steve Cohen, D-Tennessee, and HR 2761, introduced by Schiff.
The Cohen bill would disperse the power to appoint the various judges on the FISA Court across several congressional leaders. The Schiff bill, in contrast, would give the president power to appoint FISA court judges,
Finally, a separate bill by Blumenthal (SB 1467) would take an additional step of allowing the Privacy & Civil Liberties Oversight Board (which sat dormant for a decade after its creation was recommended by the 9/11 Commission until President Barack Obama finally appointed members last year) to send privacy advocates into FISA court proceedings to challenge the government’s view.
Schiff also supports Blumenthal’s approach, saying “this court operates in secret and doesn’t have the benefit of contrary views,” whereas his and Blumenthal’s proposed reforms “would provide for some adversarial process on key FISA court decisions, so the court would have the benefit of a well-informed view of the case law.”
Addressing the iceberg
In contrast to these helpful – but alone, inadequate – protections, two particular proposals promise fundamental reform that actually would restore parts of the fundamental rights eroded by the expansion of domestic surveillance during the past decade. A third would unwind the domestic surveillance state entirely.
The first two enjoy bipartisan support: the “FISA Accountability and Privacy Protection Act” (SB 1215), introduced by Senate Judiciary Chairman Patrick Leahy, D-Vermont, as well as the Libert-E Act (HR 2399), co-sponsored by Reps. John Conyers, D-MI, and Justin Amash, R-MI. Both bills would curtail powers extended in the FISA amendments of 2008, as well as portions of the Patriot Act.
The Patriot Act and the 2008 FISA amendments were controversial when they passed, presaging the widespread outrage that has erupted since the revelation this summer of some (but still not all) of the abuses they enabled.
In the midst of the 2008 presidential campaign, the largest affinity group on www.MyBarackObama.com called itself Get FISA Right. Of course, then-Sen. Obama did not get FISA right and instead wrote to the group with a weak defense of his vote, hanging his hat on the notion that “an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people.” He went on to write that the FISA Amendment Act “assures that the FISA court has that responsibility.” As we now know, his faith in the FISA court was misplaced.
Reflecting even more widespread dissent, the Patriot Act prompted grass-roots coalitions to pursue and enact resolutions defending the Bill of Rights in more than 400 cities and towns across America. Eight states also followed suit, reflecting a diverse array of political cultures as progressive as California and conservative as Montana, as western as Alaska and Hawaii, alongside states as eastern as Maine.
Even relative to the Leahy and Conyers-Amash proposals, the widest-ranging bill among those pending in Congress is the “Surveillance State Repeal Act” (HR 2818) introduced by Rep. Rush Holt, D-New Jersey, a former Princeton physics professor and former leader of the House Intelligence Committee. The Holt bill, unlike any of the other measures proposed, would fully repeal the Patriot Act and the 2008 FISA amendments in their entirety, essentially restoring limits on executive power and unwinding the surveillance abuses of the George W. Bush and Obama administrations at once.
Even though the Holt bill lacks the widespread support of more conciliatory congressional alternatives, it is crucial for concerned Americans to champion the broad spectrum remedies that it entails. In the absence of a grass-roots clamor calling for dramatic fundamental reforms, the congressional debate likely will slide in an authoritarian direction this fall, once executive agencies and officials regroup from the political drubbing they endured during the summer and flood Congress with armies of corporate and military lobbyists weaving tangled skeins, claiming that dragnet domestic surveillance is a national security imperative.
In fact, the only sectors of American society to which surveillance is necessary are the corporate and military interests that depend on it. Despite claims that national security would be undermined were constitutional rights restored, the only security at risk should Congress finally limit NSA abuses is the job security of the tens (if not hundreds) of thousands of contractors and government employees whose careers are built on a fundamentally authoritarian premise.
If only because of the sheer size and existential commitment of that lobbying base, the agencies always have enjoyed an upper hand in Congress. That is why grass-roots support for the Holt bill is so critical: it alone would shift the debate from one about long overdue limitations on government agencies toward, in contrast, the illusory justification for those powers to exist in the first place.