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Senate Democrats Unveil Proposal To Overhaul Secret Surveillance Court

BY Sarah Lai Stirland | Thursday, August 1 2013

A trio of Senate Democrats on Thursday unveiled two legislative proposals that are designed to bolster Americans' privacy protections when a secret court considers anti-terrorism investigators' domestic surveillance requests.

The proposal comes against the backdrop of a bipartisan delegation of members of both the House and the Senate meeting with President Obama Thursday in the Oval Office about the National Security Agency's surveillance programs.

“Since Edward Snowden disclosed classified material on top-secret NSA data collection programs, legitimate concerns and questions have been raised about these programs, including whether there are sufficient protections for Americans' civil liberties and privacy, whether there is adequate oversight and transparency of the programs and whether the costs of the programs are justified," said House Judiciary Chairman Bob Goodlatte, a Republican from Virginia in a press statement issued late Thursday. "I share these concerns and am committed to thoroughly reviewing these programs, getting answers to these questions and finding ways to bolster the protection of our civil liberties."

"At today’s meeting, I stressed to the President that Congress must ensure that the laws we have enacted are executed in a manner that is consistent with congressional intent and that protects both our national security and our civil liberties. We must ensure that America’s intelligence gathering system has the trust of the American people.”

For their part, Sens. Richard Blumenthal (D-Conn.), Ron Wyden (D-Ore.) and Tom Udall (D-N.M.)'s two proposals would create an office of a civil liberties advocate so that when Foreign Intelligence Surveillance Court judges make significant interpretations of surveillance law, third party lawyers with security clearance advocating on behalf of the public's privacy rights are involved in the process. Currently, only the companies that are the subjects of records requests can challenge those requests.

“These proposals are very simple and straightforward, to change the method of selecting judges that serve on the FISA Court so that they represent a more ideologically, and geographically diverse body, and also to incorporate an adversarial process, whose client will be the Constitution," Blumenthal said in a press conference on Capitol Hill Thursday morning.

He added: “This court exercises vast invisible power that requires that we preserve and bolsters and trusts its credibility at a time when clearly, there are doubts, very severe skepticism about the nature of the Foreign Intelligence Surveillance Court process.”

This special advocate would serve a five-year term, and be nominated by the Administration's Privacy and Civil Liberties Oversight Board. The senators' proposal would also obligate the attorney general to declassify and summarize any new legal interpretations of the law by the FISA court "to the greatest extent consistent with legitimate national security considerations," according to a summary of their proposal provided by Blumenthal's office.

The second proposal, the FISA Judge Selection Reform Act, would overhaul the way that FISA Court judges are nominated. A New York Times analysis published last week highlighted the fact that the nominations to the court have skewed Republican. In addition, more than a third formally worked in the executive branch, causing some outside critics to question the objectivity of the court. Ten of the 11 FISA court judges were appointed by Republican presidents, the Times noted.

Blumenthal's bill would enlarge the panel of judges to 13 from 11 to expand the geographic diversity of the selections. Under the proposal, the court would be comprised of a judge from each of the U.S.'s 12 regional circuits, as well as the Federal Circuit, a special circuit within Washington D.C. that deals with patent law and international trade disputes.

Instead of leaving the nominations to the purview of the Supreme Court's Chief Justice, Blumenthal's proposal would require the chief judge of each regional circuits to nominate a district court judge to fill any FISA court vacancies. It would be then up to the chief justice to accept or decline these nominations. If he declines them, he'd have to request two additional nominees. Additionally, judges nominated by the Supreme Court Chief Justice to the FISA Court of Review would have to be approved by five associate Supreme Court justices.

The senators said that the purpose of the legislation was to restore a sense of trust and integrity to the court, which they say has been shaken by National Security Agency whistleblower Edward Snowden's leaks of agency documents. For his part, Wyden said that confidence in the court has sunk because it interpreted the USA PATRIOT Act's language on what constitutes 'relevant' information about terrorism suspects to enable the dragnet collection and storage of information on all Americans instead of a few select terrorism investigation suspects.

"The reports about widespread surveillance programs have shown us that there is real reason to question whether civil liberties can be protected by a secret court, using secret law, issuing secret decisions," Udall, who like Blumenthal is a former federal prosecutor. "Americans deserve the assurance that their civil liberties are not being swept aside behind closed doors."

During the press conference, Udall responded to a reporter's question about how concerned his constituents about civil liberties and privacy by saying that he's hearing much more from them in the wake of Snowden's revelations than he ever had before.

The two proposals are just the latest of several legislative proposals to put additional checks on the NSA's surveillance.

California Democrat Rep. Adam Schiff's proposal would put the president in charge of nominating FISA court judges, which the senate would have to confirm.

Other proposals would require federal investigators to provide "specific and articulable facts," to the court before they could do the phone metadata collection that's currently underway. Still another from Rep. Stephen Lynch, a Democrat from Massachusetts, would enable NSA analysts to maintain their metadata datbases, but would require them to obtain approval from the foreign intelligence surveillance court everytime they wanted to query the databases.

Separately, the organizers behind Restore the Fourth protests in July announced another round of rallies around the nation against the NSA surveillance Thursday. Pentagon Papers whistleblower Daniel Ellsberg will speak at the San Francisco rally this Sunday.