When Justin Amash (R-Mich.) pushed an amendment to defund and restrict the abilities of the National Security Agency (NSA) in late July it was met with a surprising amount of bi-partisan support.
When Senator Patrick Leahy (D-Vt.) spoke in support of sweeping restrictions on U.S. surveillance programs — especially those pertaining to bulk phone call logs — during a Senate Judiciary Committee meeting last Wednesday, it received strong rebuke from fellow Democrats.
But here’s the interesting thing: Amash’s attempt and reining in the NSA’s domestic surveillance abilities failed to muster enough votes (albeit, just barely with a 205-217 vote) in the House, and didn’t stand a strong chance of changing the minds of the White House or the Senate. Leahy, who’s also Chairman of the Senate Judiciary Committee, one of the oldest and most influential congressional committees around, is different. He may just succeed in getting fellow Democrats to concede some NSA abilities.
Leahy’s legislation would call for the presence of a public advocate to argue against the intelligence community’s positions before the Foreign Intelligence Surveillance Court (FISC) — a secretive judicial medium which has come under its fair-share of criticism for an apparent policy of rubber-stamping NSA requests. Currently there is no opposition to legal arguments made by the NSA to the FISC.
Leahy would like to change that, and he’d also like to put an end the NSA’s dragnet approach to phone data.
But first he must overcome Senator Dianne Feinstein (D-Calif.), Chairwoman of the Senate Intelligence Committee, and other intelligence hawks across the political spectrum, who will “will do everything … to prevent this program from being cancelled out.”
That’s because Feinstein believes the program is essential to national security, claiming the NSA’s dragnet program could’ve prevented the 2001 September 11 attacks if they were in place.
That claim may be a bit speculative: after the 2008 Mumbai attacks struck, intelligence officials, including Director of National Intelligence and Feinstein claimed American dragnet surveillance programs helped to prevent a second attack on a Danish newspaper. That claim, however, was debunked after ProPublica published a report stating that the U.S. had little on the key players of the would-be attack until after British intelligence shared critical information — information which was gathered through an arrest, not dragnet surveillance.
But this doesn’t matter to Feinstein. To her and her fellow intelligence hawks, the dragnet collection of metadata — bits of information surrounding a message; like who you called, when and how long — isn’t surveillance, but harmless information to build a case against a suspected terrorist.
Except, to some, it isn’t harmless: it’s chilling would-be whistleblowers, and could very well devolve into political intimidation.
For example, Raymond Bonner, a lawyer and former-reporter for The New York Times, details the disconcerting implications of metadata as it affected him. Bonner had written on the killings of two American teachers in Indonesia, and managed to collect information through an anonymous U.S. official. Years later he was interviewed by the Federal Bureau of Investigation about the contents of a series of phone calls during that period for a leak investigation. Bonner had nothing to offer, but he was troubled:
“The government learned extensive details about my personal and professional life,” Bonner writes. “Most of those calls were about other stories I was writing. Some were undoubtedly to arrange my golf game with the Australian ambassador. Is he now under suspicion?”
Such investigations by federal officials could be cut off if Leahy’s bill were adopted.
But Leahy isn’t the only senator seeking to restrain the NSA. Democratic Senators Ron Wyden (Org.) Mark Udall (Colo.) and Richard Blumenthal (Conn.), and Republican Rand Paul (Ky.), are sponsoring a competing bill, the Intelligence Oversight and Surveillance Reform Act, which would adopt most of Leahy’s bill while also preventing a similar metadata mining of Internet communications, close a “backdoor” for the NSA to Internet communications and allows Internet companies to be more transparent with court order requests.
Regardless, both bills will still need to overcome Democratic party tensions — especially when such bills fly against the grain of party leaders and the White House.
And that could be too tall of an order for anybody.