The Fight To Rein In National Security Surveillance -- Will This Time Be Different?
BY Sarah Lai Stirland | Tuesday, July 23 2013
When members of the House vote on a controversial amendment to curtail the National Security Agency's big data approach to domestic terrorism Wednesday evening, it'll be a big test of sorts of modern day Internet-empowered activism.
Dozens of civil liberties, political and civic engagement groups blasted off e-mails, tweets and blog posts to millions of their members Tuesday in a last-minute push. The activists want members to approve a bipartisan amendment to a defense appropriations bill that would limit the NSA's abilities under Foreign Intelligence Surveillance Court orders so the agency could only collect records pertaining to the subjects of an investigation. The amendment, as with the organizing, is in response to disclosure that the NSA now vacuums up records listing which numbers millions of Americans call on their phones, and how long those calls are connected.
The amendment, offered by Rep. Justin Amash, (R-Mich.), is co-sponsored by John Conyers (D-Mich.), who is also the House Judiciary Committee's ranking member. Other co-sponsors include Reps. Mick Mulvaney (R-S.C.), Jared Polis (D-Colo), Thomas Massie (R-K.Y.) Amash has been tweeting and listing support for the amendment from other members of Congress throughout the week.
The list of groups sending out the e-mails include what is by now a reliable coalition of liberals and libertarians who regularly agree on civil liberties issues -- Free Press, the Electronic Frontier Foundation, CREDO Action, Fight for the Future, Demand Progress, FreedomWorks, TechFreedom and the Competitive Enterprise Institute, among others. Sina Khanifar, a developer-activist in San Francisco, also stayed up all night with three colleagues to build a tool housed at Defundthensa.com to offer another direction for action. The site, based on a Sunlight Foundation API, provides would-be callers with the contact information for their representative, and a script once they enter their zip code. Khanifar has also been promoting the site and its goal on Hacker News and Reddit.
"It’s still an uphill battle, and it most likely won’t happen, but it’s by no means impossible that this amendment will pass in the House, and then the question is whether this has any chance in the Senate," Berin Szoka, TechFreedom's president, told me in a phone interview. "That’s obviously much more of a fight, but even getting this passed out of the House, or getting a significant number of representatives to vote on it in the House will help to force a larger conversation about the surveillance program."
Szoka, a longtime inside-the-Beltway think-tanker, expressed a tempered optimism shared by many veteran observers of the national security debate in the United States. The reality since the USA PATRIOT Act's passage in 2001, shortly after the September 11 terror attacks, is that very few members have been willing to vote to curtail the surveillance capabilities of the NSA for fear that their record will be used in out-of-context political attacks when election time comes rolling around.
The latest couple of examples of how this works: During the short election season for the vacant Senate seat left by Secretary of State John Kerry, Republican candidate Gabriel Gomez used House Democrat Ed Markey's vote in opposition to extending certain provisions of the PATRIOT Act to claim that Markey was 'weak' on national security. And in June, Rep. Dutch Ruppersberger (D-Md.), the House Intelligence Committee's ranking member, claimed on CNN that had the current NSA dragnet surveillance been in place, 9/11 might not have happened.
"If you want to find a needle in a haystack, you need a haystack," he told anchor Jake Tapper.
Civil Liberties groups such as the ACLU, libertarian groups and constiutional scholars have teamed up for more than a decade to try to build more accountability into national surveillance laws, yet for the most part, their efforts have failed to gain the kind of traction that they would like. Back in 2006 when Congress spent a year conducting kabuki-style hearings to re-authorize the PATRIOT Act, Democrats who tried to offer amendments like Amash's on the House floor were systematically blocked from doing so by Republican leadership.
That's what makes the Amash amendment and its progress to the floor of the House on Wednesday evening so intriguing. With the amendment making it through, many of the forces (including the popular blogs BoingBoing and TechDirt) that rallied attention to, and eventually defeated, the Stop Online Piracy Act and the Protect IP Act are now out in full force trying to whip up the same level of energy to push members in support of the amendment.
These organizations and their networks didn't exist in previous incarnations of the national security surveillance debates. Moreover, the evidence of mass surveillance didn't exist to spur action, notes Szoka.
Another difference this time around: The author of the PATRIOT Act, Rep. Jim Sensenbrenner (R-Wisc.), has been a vocal skeptic of the NSA's interpretation of its powers ever since Edward Snowden's leaks to The Guardian first hit newspapers, and is likely to support the Amash amendment.
Following up his pointed questions from last week's House Judiciary Committee oversight hearing of the NSA's surveillance activities, Sensenbrenner penned an OpEd in POLITICO Monday evening that re-iterated his points. He argued, once again, that the administration's definition of what's 'relevant' to a national security investigation doesn't meet the more stringent standard that was meant in the PATRIOT Act -- i.e. that every American' call records cannot possibly be relevant enough to be collected en masse and stored for later retrieval.
"It appears the president now believes we are all connected to terrorists," Sensenbrenner wrote. "It’s as if he’s playing Six Degrees of Kevin Bacon with our civil liberties."
Szoka argued that Amash's amendment gives members a way to vote in favor of limiting the NSA's surveillance without providing fodder for political challengers during election season.
"The beauty of the Amash Amendment is that it gives Congress the time to think that through," he said. "It simply says that today, the NSA cannot use this existing legal authority to do surveillance unless the target is the subject of a national security investigation, which effectively ends blanket surveillance, while preserving the NSA’s ability to continue to conduct investigations where they actually have a national security target."
NSA Director Keith Alexander was so alarmed by the momentum of support for the Amash amendment that he called an emergency meeting for House leaders on Tuesday, reported the Huffington Post. And both the majority and minority leaders of the House Permanent Select Committee on Intelligence issued a statement late Tuesday urging the defeat of the Amash amendment.
"An amendment to H.R. 2397, the Fiscal Year 2014 Defense Appropriations bill, to require additional certifications by the Foreign Intelligence Surveillance Court (FISC) would undermine a valuable collection tool initiated in 2001 and which Congress has voted to reauthorize multiple times with bipartisan support, most recently in 2011," said Reps. Mike Rogers (R-MI) and Ruppersberger in a joint press statement. "The collection tool has been integral in preventing multiple terrorist attacks, including a plot to attack the New York Stock Exchange in 2009. If enacted, this amendment would have an immediate – and potentially fatal – operational impact, and make America more vulnerable to terrorist attacks."
They continued to argue: “We must provide our Intelligence Community the capabilities necessary to defend America and its citizens, while having a robust dialogue to develop improvements to our FISA authorities. Article I of our Constitution charges Congress with providing for the common defense. We must continue to do so. Premature reactions to the recent intelligence leaks would endanger our national security. We cannot afford to make that mistake.”
Tomorrow's scheduled vote will be a roll call vote, which means that members of the House will be on record on where they stand on this issue.