It looks as though President Obama and House Speaker John A. Boehner have finally found something they can cooperate on; namely, making sure Congress doesn’t limit the ability of the National Security Agency (NSA) to spy on Americans too much.
The USA Freedom Act, which the House of Representatives passed in late May, was originally intended to rein in the agency’s bulk collection of ordinary Americans’ phone and Internet records. However, the Obama administration and the House leadership worked together to water down the bill considerably. The version passed by the House left many of the most serious problems with NSA surveillance untouched. The Senate Judiciary Committee has a lot to fix as it moves ahead with work on the bill, which began June 5.
One of the biggest flaws is the failure to improve judicial oversight of NSA surveillance. In order to collect data from targets in the United States, the agency must request approval from the Foreign Intelligence Surveillance Court (FISC). However, this court decides whether to approve these requests after secret hearings, where government lawyers present government evidence with no challenge from any lawyer representing the targets of the surveillance or the public as a whole. Critics have long objected that these hearings violate a core principle of the American legal tradition, which aims to protect individual liberty by making sure that the state’s efforts to take a citizen’s life or freedom can be contested by that citizen’s lawyer before a neutral judge.
On its face, the House bill seems to address this concern by requiring the court to appoint an external lawyer in any case involving a new or significant legal interpretation. However, FISC judges can refuse to appoint such a lawyer as long as they issue a written explanation of why the public should not be represented — and the explanation itself they can keep secret.
Senators who want to make sure surveillance hearings genuinely consider the public’s right to privacy should consider the proposal for a FISC special advocate put forward by the Constitution Project. Unlike the House bill, this proposal would require the court to appoint a security-cleared lawyer to represent surveillance targets and the general public whenever it receives a new data-collection request that is not aimed at specific individuals. Our proposal would also allow the special advocate to appeal FISC rulings. Since most surveillance requests are individualized, the Constitution Project’s approach would avoid the delays in intelligence collection the NSA usually invokes to argue against an adversarial process while still providing a strong check on the mass surveillance that most threatens ordinary Americans’ privacy.
Adding a special advocate will not, by itself, fix the legislation, though. In addition to making sure there are independent lawyers challenging the NSA’s use of legal loopholes, the Senate also needs to make sure there are fewer loopholes to exploit. For example, the bill currently requires the government to limit any requests for records to a “specific selection term,” but it defines “specific selection term” broadly, as any term that limits the scope of the request. This arguably means that any data-gathering short of nationwide surveillance, such as collection of records for an entire area code or an entire state, is still allowed. The NSA has previously interpreted a Patriot Act provision authorizing collection of records “relevant” to a terrorism investigation as allowing it to monitor every landline-based phone call, so it will almost certainly exploit this ambiguity if the committee doesn’t remove it.
The Senate should also restore the bill’s ban on warrantless “backdoor searches” of information obtained under the FISA Amendments Act, which the intelligence community persuaded the House to remove. These searches involve going through previously collected information on foreign targets in order to find records of people calling from within the United States. Examination of such “incidental collections” should require a warrant just like any other search. As it stands now, legislation intended to curtail the government’s bulk collection of private information may, in fact, expand it.
The guiding aim of all of these improvements is accountability. Government lawyers in surveillance hearings should be accountable to opposing counsel for the evidence and arguments they present. The laws authorizing surveillance should include clear and specific constraints, so that the NSA is meaningfully accountable to Congress. Those laws should provide for timely, public access to information on the agency’s activities so that it is accountable to ordinary citizens as well. Media reports based on the disclosure of documents from former NSA contractor Edward Snowden have made clear the danger to privacy and civil liberties of letting the spy agency operate without accountability. The Senate Judiciary Committee should keep those dangers in mind as it begins to consider the bill.
Virginia Sloan is president of the Constitution Project.