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December 27, 2012

A Few Senators Take a Stand for Civil Liberties Ahead of Surveillance Law Reauthorization

Posted in: Privacy,Secrecy,War on Terrorism

Sen. Jeff Merkley of Oregon during Senate debate

A surveillance law that granted the government expanded authority to collect the communications of foreign persons outside the United States four years ago is set to expire in four days unless reauthorized. On Thursday, senators concerned about how the law has been interpreted in secret and how these secret interpretations permit the collection or interception of Americans’ communications put forward amendments to the reauthorization and were permitted to engage in what passes for debate in Congress these days.

The US Senate has known for months that it had to meet a deadline to reauthorize the FISA Amendments Act and the reauthorization was ready in September for debate being squeezed in today. In fact, it was not a guarantee that the Senate would even allow amendments to the reauthorization that might call for additional oversight or greater privacy protections. But Sens. Ron Wyden, Jeff Merkley, Rand Paul, Mark Udall and a few others pushed back and convinced Senate Majority Leader Harry Reid to allow time for debate.

Merkley suggested this debate should have happened months ago so it could happen in a “full and responsible manner” without pressure to “vote against amendments in order to address the falsely created issue of partnering with the House bill.” He noted this was a “single-day debate” in between holidays “when few Americans will be paying attention,” but, nonetheless, it was important to have this debate about how it could be strengthened to protect privacy.

Sen. Dianne Feinstein, chair of the Senate Select Committee on Intelligence, said during floor debate, “We have four days to get this bill signed by the president or this section ceases to function. Four days. This is a House bill before us. It reauthorizes the program to 2017.” She suggested that trying to pass amendments and failing to meet this deadline could “destroy the program.” Like Vice President Dick Cheney, she talked about how she believed the country still faced a threat, there were people who wanted to kill Americans, and intelligence functions needed to be streamlined to ensure next attack didn’t happen. Flustered, she said, “You put all this out in public and the next thing is more, more and more and then the program is destroyed.” And, prior to these remarks, she highlighted all the terrorists arrested in the past year.

All the blustering essentially communicated that Feinstein did not think the Senate should have taken time to hear debate on amendments. Her anti-democratic hysteria was made even more unreasonable by the fact that Merkley, Udall, and Wyden each made statements, which made clear they were showing great deference to intelligence agencies while at the same time attempting to get some questions answered about how the program is likely violating the privacy of Americans.

Particularly at issue was how reviews of requests for warrants to eavesdrop on communications by the Foreign Intelligence Surveillance Court are not made public. Both Sens. Ron Wyden and Jeff Merkley of Oregon indicated support for making rulings by the court public so Americans could know how the court interprets surveillance law and the United States Constitution.

Wyden explained the FISA court’s rulings are entirely secret. “The public has absolutely no idea what the court is actually saying,” he said. “What it means is the country is in fact developing a secret body of law so Americans have no way of finding out how their laws and Constitution are being interpreted.”

Multiple times senators calling for additional oversight claimed they do not have the proper information necessary to determine how the law has impacted Americans’ privacy. Sen. Christopher Coons of Delaware addressed the safeguards believed to be in the law:

It requires that the government surveillance program must be “reasonably designed to target foreigners abroad and not intentionally acquire wholly domestic communications.” The law requires that a wiretap be turned off when the government knows it is listening in on a conversation between two US individuals. And it forbids the government from targeting a foreigner as a pretext for obtaining the communications of a US national.

All three of these are important privacy protections currently in the law. The problem is we here in the United States Senate and so the citizens we represent don’t know how well any of these safeguards actually work.

We don’t know how courts construe the law’s requirement that surveillance be, as I mentioned, “reasonably designed” not to obtain any purely domestic information. The law doesn’t forbid purely domestic information from being collected. We know that at least one FISA court has ruled that the surveillance program violated the law. Why? Those who know can’t say and average Americans can’t know.

Wyden highlighted the big questions he and others have, which heads of intelligence agencies have refused to answer. He has asked for a rough estimate of the number of phone calls and emails swept up in the interception of communications under this law.  The Office of the Director of National Intelligence (ODNI) told Wyden and Udall in July 2011, “It is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed.” He said he understood they may not be able to give an exact estimate but all he wanted was a rough estimate. If they cannot give even a rough estimate, then he said, “Robust oversight really ought to be called toothless oversight.”

When Udall made his remarks on the floor, he said this was disconcerting because, “If no one has even estimated how many Americans have had their communications intercepted, then it is possible this number could be quite large.”

Additionally, Wyden said he wanted to know if any “wholly domestic communications” had been collected under the law. ODNI declined to answer. Wyden then added that FAA allows government to go to a secret court on a yearly basis and get programmatic warrants. There is no requirement that these communications actually involve people engaged in terrorism or espionage. He doesn’t know how many Americans’ communications have been collected. If an agency has a pile of communications that include phone calls or emails, there are few rules for what can be done with those communications after .

There is “nothing in the law preventing government officials from going to a pile of communications and deliberately searching for the calls or emails of certain Americans, even if they do not have any evidence that American is involved in some kind of wrongdoing,” Wyden stated.

Mentioned by both Merkley and Wyden was the fact that they had been working since 2008 to establish a process for reviewing, redacting and releasing opinions of the FISA court so the public could see what the government think their law and Constitution means. In 2009, the Obama administration indicated in a letter they would be setting up such a process. But, as of today, not a single redacted opinion has been released. Wyden said he could not tell if the administration still intends to fulfill its promise. It seems they’ve decided to ignore the fact they ever made the request with the hope that those concerned will just go away.

That the intelligence community had acknowledged on at least one occasion the FISA court ruled collection had violated the Fourth Amendment was highlighted. Wyden also said that it had been concluded in reports that “certain types of compliance issues continue to occur.”

The intelligence agencies claim there are “minimization procedures” in place to “deal with issues that those of us concerned with privacy rights have raised,” Wyden said. These procedures are classified so, as far as reassuring Americans that their privacy rights are being protected, they are insignificant. And Wyden stated, as someone who has seen them, “I think they are better than nothing but there is no way, colleagues, these minimization procedures ought to be a substitute for having strong privacy protections written into the law.”

Furthermore, Wyden highlighted how National Security Agency (NSA) director Keith Alexander had gone to a major tech conference, DEFCON 20, on July 27, 2012. He was asked at the conference, “Does the NSA really keep a file on everyone [in the United States] and, if so, can I see mine?” Alexander responded: “Absolutely not. And anybody who would tell you that we’re keeping files or dossiers on the American people know[s] that’s not true.” He emphasized “the story that we have millions or hundreds of millions of dossiers on people is absolutely false.” He talked up the “minimization procedures,” which Wyden said are not as strong as Alexander made them out to be.

What is important to note is this is what officials consider transparency nowadays: an official discloses their view on how a law functions and is abided by in practice. The public is not allowed to see any documents or official reports that confirm whether it is true or not that the agency is not violating the law or engaging in routine abusive and unconstitutional acts. The public—and sometimes even members of Congress—are expected to trust them and take them at their word.

***

At about 5:30 pm EST, the Senate voted on amendments put forward during the day’s debate: Wyden’s oversight and transparency amendment, which would request a rough estimate or any information the NSA has on the collection of Americans’ communications; the Merkley FISA Court Amendment, which would require FISA court rulings to be declassified in some way and released to the public; the Leahy Sunset Amendment, which would shorten the length of the law’s reauthorization to three years; and an amendment put forward by Sen. Rand Paul to “all US communications, whether sought by US intelligence agencies like the NSA or any government agency, are protected against unwarranted searches and seizures—even if they are held by third party email providers like Google.”

The Leahy Amendment failed to pass 38-52. The Senate voted on Merkley’s amendment immediately after. It failed to pass 37-54. Rand Paul’s amendment (which Feinstein said would’ve repealed the FISA Amendments Act) failed to pass.

Votes on Wyden’s amendment and the reauthorization were scheduled for tomorrow morning.


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