Congress takes on spying: A guideSaturday, August 3, 2013 at 8:32 am by Michael Figura
Spurred by an unprecedented public outcry and grassroots pressure, Congress has begun to take action to address the unconstitutional dragnet spying on Americans revealed by whsitleblower Edward Snowden.
More than a dozen bills have been proposed to make changes to the legal regime governing domestic surveillance, and more are reportedly on the way. A brief analysis of them and their scope follows after the jump.
Download BORDC’s grassroots organizing toolkit for civil liberties advocacy during the 2013 August congressional recess for more information about the pending legislative proposals, as well as guidance to how to focus your congressional representatives on your concerns. And contact the BORDC organizing team with any questions.
Some bills make fundamental changes that would excise the rotten foundations of the civil liberties and civil rights assault that has emerged since 9/11. Others would make more incremental changes which would provide additional transparency and oversight, but would need to coincide with more radical measures.
The four most transformative legislative proposals are:
- Former House Intelligence Committee Chairman Rush Holt (D-NJ), a former Princeton physics professor, introduced the Surveillance State Repeal Act (H.R. 2818) to entirely repeal both the PATRIOT Act and the 2008 FISA Amendments. This is easily the most aggressive and visionary proposal among the dozen bills introduced.
- Senate Judiciary Committee Chairman Patrick Leahy (D-VT) has introduced the bipartisan FISA Accountability and Privacy Protection Act of 2013 (S. 1215), which would drastically reform FISA and the PATRIOT Act. It enjoys especially broad support and may be the most politically viable among the serious reform proposals.
- Congressmen John Conyers (D-MI) and Justin Amash (R-MI) have introduced two strong bills, including the Libert-E Act (H.R. 2399). They also introduced bipartisan amendments to defund the NSA’s domestic spying activities as part of the House defense appropriations debate. They were barely rejected by a 217- 205 vote on July 24, but not until after a surprisingly close vote indicated broad, bipartisan support for long overdue constitutional restraints on secret and unaccountable national security programs.
- Sen. Rand Paul (R-KY) introduced the Fourth Amendment Restoration Act of 2013 (S. 1121) requiring a judicial warrant for any collection of phone records. This bill is especially straightforward (its operational provision is a single sentence) and would dramatically curtail surveillance of domestic phone calls, but it addresses only phone records, while leaving unaddressed the variety of Internet and other surveillance activities the NSA also conducts.
Other bills have targeted more small-bore changes to the legal surveillance infrastructure.
Requiring individualized suspicion
Sen. Mark Udall (D-CO) introduced S. 1182 to require specific evidence to justify business record investigations under Section 215 of the PATRIOT Act. Similarly, Rep. Dennis Ross (R-FL) introduced H.R. 2603, which would require individual suspicion but only specifically for investigations under section 215.
While one of the memos leaked by whistleblower Edward Snowden revealed Section 215 abuses, they remain the tip of the iceberg. Congress should address domestic spying once and for all, not in a piecemeal reform process that allows most abuses to continue while fixing only some of them.
Reforming the FISA Court
Some bills would reform the process for appointing judges to the secret FISA court, including S. 1460, introduced by Sen. Richard Blumenthal (D-CT), H.R. 2586, introduced by Rep. Steve Cohen (D-TN), and H.R. 2761, introduced by Rep. Adam Schiff (D-CA). A bill by Sen. Blumenthal, S. 1467, would also insert a privacy advocate into the FISA court proceedings and allow for interested parties to participate in appeals.
Reforming the FISA court is important, as judges are currently appointed unilaterally by Chief Justice John Roberts, who has stacked the court with pro- government judges and former prosecutors. Predictably, the court has devolved into a rubber stamp that meets in secret, hears only the government’s story, and routinely approves every surveillance request it receives.
As important as it remains to reform the process for appointing judges to the FISA court and inserting a privacy advocate into the proceedings, Congress should also enact substantive measures to change the legal standards applied by the court.
Additional disclosures about surveillance
Rep. Stephen Lynch (D-MA) introduced H.R. 2684 to force minimal disclosure and some judicial oversight. Rep. Rick Larsen (D-WA) introduced similarly limited transparency reforms in H.R. 2736, as did Sen. Bernie Sanders (I-VT) in S. 1168. Finally, Senator Franken (D-MN) has introduced S. 1452 which would require more comprehensive disclosures regarding the breadth of surveillance conducted by the government and allow voluntary disclosure by private entities.
Rep. Sheila Jackson-Lee (D-TX) has introduced a weak bill (H.R. 2440) that would merely require the disclosure of some (but not all) secret FISA court opinions. Rep. Adam Schiff (D-CA) also introduced a similar bill (H.R. 2475), as has Sen. Jeff Merkley (D-OR) (S. 1130).
Transparency and judicial oversight are both important, as NSA abuses have been possible only due to the government secrecy, but neither is enough. The facts already disclosed to the public require accountability, as well as substantive reforms to government surveillance powers, whereas these bills provide neither.