The Republican co-author of the US Patriot Act is set to reveal bipartisan legislation that would curb the domestic surveillance power of intelligence agencies.
Rep. Jim Sensenbrenner (R-OH) - who helped construct
intelligence-gathering power for government agencies via the
Patriot Act following the attacks of September 11, 2001 - said
the recent National Security Agency revelations have shown these
powers have been taken too far, for example, the broad collection
of phone records of all Americans.
It’s time “to put their metadata program out of business,” he told the Guardian.
Sensenbrenner’s USA Freedom Act - Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act - in the House of Representatives will be unveiled in tandem with Senate Judiciary Committee Chairman Patrick Leahy’s similar proposal.
The bills aim to pull together various efforts to reform the NSA’s surveillance powers following the disclosures made possible by former intelligence contractor Edward Snowden.
The USA Freedom Act has four main planks: to require courts to disclose surveillance policies in an effort to end “secret laws”; to install a special court advocate focused on protecting privacy interests; to give companies the opportunity reveal the number of requests for customer data they have received from the US; and to tighten loopholes in existing overseas surveillance mandates that can be used to access Americans’ internet and email data.
Tightening Section 215 of the Patriot Act to limit collection of business records like telephone metadata is a major aim of the House legislation, given broad interpretations by spying courts in the past. The new definition of Section 215 would require the NSA to convince the courts established by the Foreign Intelligence Surveillance Act (FISA) a target was “an agent of a foreign power,” was “subject of an investigation” or was figured to be “in contact with an agent of a foreign power.”
"Having the three qualifications would make it very clear that they have to find out who a bad person is first, get the FISA order, and then see who that bad person was contacting to get the information rather than find the needle in a very large haystack, which is what the metadata was," said Sensenbrenner, chair of the House Judiciary Committee.
A 2006 amendment to the Patriot Act demanded only “relevant” targets are allowable, though the NSA convinced the FISA court the clause was more expansive rather than constrictive, and “that's what brought about the metadata collection, which amounts to trillions of phone calls."
While intelligence officials say this broad definition is the only way to gather enough data to find connections that could ward off nefarious plots, Sensenbrenner sees the bulk collections as more of a hindrance.
"The haystack approach missed the Boston marathon bombing, and that was after the Russians told us the Tsarnaev brothers were bad guys," he said.
The legislation is likely to have some support based on a House vote in July, when a temporary measure to defund NSA bulk collection operations was barely defeated, 217 to 205. In addition, members of the Senate, including Ron Wyden (D-OR), Mark Udall (D-CO), Rand Paul (R-KY) and Richard Blumenthal (D-CT), have pushed similar reform legislation in the upper chamber.
"Opinions have hardened with the revelations over the summer, particularly the inspector general's report that there were thousands of violations of regulations, and the disclosure that NSA employees were spying on their spouses or significant others, which was very chilling," Sensenbrenner said.
He added the dual House-Senate approach is the best way to maximize reform momentum and opposition to bulk collections by intelligence agencies.
"I wanted to get a bill passed, and the best way to get a bill passed is to have the chairman of the judiciary committee and the most senior US senator [Leahy] co-sponsoring it," he said. "We need to change the law, and we need to change the law quickly."
Sen. Dianne Feinstein (D-CA), chair of the Senate Intelligence Committee, is likely to be the greatest foe to any measure that seeks a ban on large-scale collections, as she has been supportive of the NSA through the myriad revelations over the summer. She has proposed more oversight on current NSA capabilities rather than addressing any abuse within the programs, to Sensenbrenner’s chagrin.
"I do not want to see Congress pass a fig leaf because that would allow the NSA to say 'Well, we've cleaned up our act' until the next scandal breaks," said Sensenbrenner.
"[Party leaders] are going to have to review what kind of people they put on the intelligence committee. Oversight is as good as the desire of the chairman to do it."
The Ohio congressman said constraining the ability of Director of National Intelligence James Clapper to collect vast amounts of domestic communique will cause a stir.
"I anticipate a big fight, and Senator Feinstein has already basically declared war," said Sensenbrenner. "If they use a law like Senator Feinstein is proposing, it will just allow them to do business as usual with a little bit of a change in the optics."
He added that he believes Clapper should have been ousted for misleading Congress about bulk phone-record collections.
"Oversight only works when the agency that oversight is directed at tells the truth, and having Mr. Clapper say he gave the least untruthful answer should, in my opinion, have resulted in a firing and a prosecution," said the congressman.
Another key aspect of Sensenbrenner’s bill is to limit other means presidents and intelligence agencies have used to skirt legislative boundaries.
"I have always had a lot of questions about administrative subpoenas such as national security letters, and the bill adds a sunset date for national security letters, which were originally authorised in 1986,” he said.
Publication of the House’s USA Freedom Act, also sponsored by Rep. John Conyers (D-MI), is pending based on the government shutdown.
Sen. Leahy’s office said his version of the bill will be introduced in the Judiciary Committee once the shutdown concludes.