Senate Judiciary Committee Chairman Patrick Leahy, D-VT, at a panel on Wednesday, July 31, 2013, where top Obama administration officials were questioned about the National Security Agency’s surveillance programs. (AP Photo/J. Scott Applewhite)
These days it’s difficult to imagine Congress’s return to the business of governance. Still, several lawmakers have refocused their attention on the National Security Agency’s surveillance practices, suggesting that the resolve to reform did not die down during the August recess or the crises that followed. At least a dozen bills aimed at the NSA’s spying powers are pending in Congress, and key committees will hold hearings in the next two weeks.
Senator Patrick Leahy spoke forcefully today at Georgetown University Law Center about the need to curb the reach of the NSA and to reconsider the structure of the Foreign Intelligence Surveillance Court (FISC) that authorizes the agency’s spying requests. “The Section 215 bulk collection of Americans’ phone records must end,” said Leahy, the top Democrat on the Judiciary Committee, which is responsible for marking up several of the bills. “The government has not made its case that this is an effective counterterrorism tool, especially in light of the intrusion on Americans’ privacy rights.”
On Monday, Leahy and a bipartisan group of eight other senators sent a letter to the intelligence community’s inspector general requesting a “full accounting” of the government’s surveillance practices between 2010 and 2013, particularly in regards to US citizens. Leahy has already introduced legislation that would revise Section 215 of the Patriot Act to raise the standard required of the government to justify the collection of data in a terrorism investigation. Leahy’s bill would also increase transparency, public reporting, and inspector general oversight.
Democratic Senators Mark Udall and Ron Wyden have also introduced legislation targeting Section 215, as have House Democrat John Conyers and Republican Justin Amash. A proposal from New Jersey Democrat Rush Holt goes even further, repealing the entire Patriot Act and the 2008 amendments to the Foreign Intelligence Surveillance Act (FISA) that give the NSA its sweeping reach.
Limiting the NSA’s surveillance authority will only be meaningful if the court charged with interpreting those laws is strengthened, something that Leahy pointed to in his remarks. “I am convinced the system set up in the 1970s to regulate the surveillance capabilities of our intelligence community is no longer working,” Leahy said in reference to FISC, the secret court created after the passage of FISA in 1978 to address widespread domestic spying by the NSA, CIA and FBI, which was exposed in a series of congressional investigations by a group of senators known as the Church Committee.
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Several of that committee’s key participants, including former Vice President and Senator Walter Mondale and former Senator Gary Hart, also spoke at Georgetown on Tuesday, providing a historical perspective on the court they said has drifted from its original intent in a dangerous way. These lawmakers expected the court to halt warrantless wiretapping and other illegal practices by authorizing only legitimate requests, while meeting the state’s need for secrecy. But recent revelations about the unprecedented scope of domestic information-gathering, and the fact that the court has approved virtually all of the requests for authorization brought before it, suggest that the court has not served as a meaningful check.
Instead, as Leahy argued, the technological changes that have vastly altered the intelligence landscape have also expanded the court’s role in unintended ways. “These judges are now rendering complex constitutional decisions about massive surveillance programs that have major implications for Americans’ privacy. They are conducting oversight of highly technical programs that even the agency running them apparently did not understand and certainly did not accurately explain to the court,” Leahy said.
Moreover, as Leahy noted, the court is creating a secret body of law to govern current and future intelligence practices. “I don’t think any of us anticipated that that same court, protected from any outside interference at all, operating in secret…would have the authority to declare law that the intelligence agencies could then use to justify what they’re doing.“ said Mondale, who said Congress should consider how legislation could bring the court back within its intended, more limited role.
Another weakness in the FISC structure is the absence of an advocate to challenge the government before the court. “I sort of assumed, without precedent, that a FISA judge would represent the public interest and the Fourth Amendment,” Hart said. “At the very least this 99-plus percent positive rulings for warrants suggests that the law ought to be amended so that there is an…advocate for the Fourth Amendment to make the other side of the argument.” That idea has purchase with lawmakers: Senator Richard Blumenthal authored a bill installing independent attorneys on the court to argue on behalf of civil liberties, and California Democrat Adam Schiff introduced similar legislation in the House last week. (My colleague George Zornick spoke to Schiff about his bill in July.)
Other reforms pointed to by former Church Committee members include making the court’s opinions public, and changing the process by which FISC judges are chosen. Currently, the chief justice of the Supreme Court appoints judges to seven-year terms with no congressional oversight. John Roberts’ appointments have been almost exclusively Republican. Under another bill put forward by Senator Blumenthal, the Chief Justice would select from a pool of judges nominated by each of the federal circuits. Schiff wrote a bill reforming the nomination process so that it requires presidential appointment and Senate confirmation, and yet another to increase transparency (with a major national security loophole). Because FISC does not have oversight over the NSA’s adherence to its rulings, boosting the role of the inspector general is also critical for enforcing any new legislation.
One of the greatest lessons to be drawn from the Church Committee is of the significant role Congress can play in investigating and challenging abuses of civil liberties by the government. While the committee’s tangible legacy was the laws that, for a while at least, curtailed domestic spying, it was the information made public through exhaustive hearings that made legislative action possible. These revelations were not about only domestic spying but also the assassination of foreign leaders and other shocking examples of executive overreach. Whether Congress will crack down on the intelligence community is one question; whether it will make room for a broader debate about the power of America’s surveillance state is another matter entirely.
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