Two Bills Offer Different Visions of NSA Reform

Reconciling the measures could prove difficult if not impossible

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Jonathan Ernst / Reuters

Senator Dianne Feinstein (D-CA) at the U.S. Capitol in Washington, D.C., June 13, 2013.

Two separate bills were introduced on Capitol Hill this week in response to the ongoing controversy stemming from revelations of mass domestic surveillance conducted by the U.S. National Security Agency. In both style and substance the two measures could hardly be more different.

Senate Judiciary Chairman Patrick Leahy (D-Vt) introduced a bill Tuesday with Congressman Jim Sensenbrenner (R-Wisc), one of the architects of the Patriot Act a decade ago, titled the “USA Freedom Act.” The bill ends “bulk collection” of Americans’ communications records that had been authorized under Section 215 of the Patriot Act, while introducing a number of safeguards and reforms to the Foreign Intelligence Surveillance Act Court, which oversees the NSA’s surveillance activities. The measure claims the support of more than 100 co-sponsors in the House and Senate, plus heavyweight industry supporters like Facebook, Google, AOL, Microsoft, Apple, Yahoo, Mozilla and others. Interest groups supporting the measure include both the ACLU and the NRA. The Electronic Frontier Foundation, which is suing the NSA over its surveillance activities, is withholding judgment for the moment but EFF staff attorney Kurt Opsahl told TIME the Leahy bill is “definitely a step forward.”

On Thursday, NSA defenders launched their own volley, as the Senate Intelligence Committee approved the “FISA Improvements Act of 2013.” True to its name, the bill isn’t intended to reform the Foreign Intelligence Surveillance Act so much as enshrine the NSA’s currently questionable practices into law while injecting some transparency into the process. The bill, sponsored by Senate Intelligence Committee Chairwoman Dianne Feinstein and co-sponsored by Vice-Chairman Saxby Chambliss, includes modest reforms like stricter requirements for NSA reports to its overseers and a five-year limit on how long intelligence services can hold information gathered under Patriot Act-authorized surveillance.

Feinstein’s bill was made public after it was approved by the Senate Intelligence Committee on Thursday, though a spokesman said Feinstein has been describing the measures in the bill in op-eds and open testimony for months.

NSA critics are unimpressed by its reform measures. “It doesn’t stop the spying,” Opsahl said. “It will instead codify and extend the spying and that’s not recognizing the need for substantive reform.”

“This is not reform but an attempt to put a congressional stamp of approval on gross privacy violations. We will fight this bill for what it is — a way to make the worst abuses of the Patriot Act permanent,” ACLU attorney Michelle Richardson told Politico.

It’s not clear whether Leahy and Sensenbrenner’s bill will have the votes to get out of committee in the Senate or the House. Feinstein is a member of the Senate Judiciary Committee and another Democrat, Sheldon Whitehouse, has signaled opposition to canceling the NSA “bulk collection” program. One GOP committee member, Senator Mike Lee of Utah, sides with Leahy, as do some other committee Democrats.

If the two competing measures do end up going head to head on the floor of the Senate, reconciling them could prove a challenge.

“There are parts of Senator Leahy’s bill that are fundamentally at odds with Senator Feinstein’s bill, especially with respect to the business records program,” which deals with compelling business to supply information to intelligence agencies, a Senate aide familiar with the matter told TIME.

Both offices issued public statements professing their eagerness to review each other’s legislation but it’s unclear just where—or how—the two bills could find common ground.

3 comments
drudown
drudown

Tell me, how in the &%$# can you purport to "reform" something that VIOLATES the express language of the Bill of Rights, much less without a FULL and COMPLETE disclosure of ALL MATERIAL FACTS to the Commander in Chief and Independent Judiciary (i.e., via an in camera inspection)?

(sigh.)

Unbelievable.

AlphaJuliette
AlphaJuliette

This is another pathetic closing of the barn door after the horses have run out. 

Why is it we are always in a fix-it mode?  Why is it we simply don't do the right thing at the right time?  I'll tell you why.  It's because we operate by the exception to the rule and not by the rule.

The rule in this case being do unto others as you would have them do unto you.  We need to operate by and apply the principles of our Constitution beyond the waterline. 

Exceptionalism doesn't give one a license to do what you want when you want.  It comes with a huge responsibility to be an example to all.  Thus far, on many different fronts, we are failing ourselves and the rest of the world.

Past time for a course change.

drudown
drudown

You know, it would really benefit the People if a SINGLE member of the (once mighty) Media simply confronted Sen. Feinstein and the GOP members of Congress as to (1) WHY the Bill of Rights is allegedly NO LONGER VALID and (2) WHY THE INDEPENDENT JUDICIARY is not enjoining the obviously unlawful course and scope of the NSA's domestic activities? 

The express language of the 4th Amendment is as clear and unambiguous as the Supreme Court precedent on warrantless wiretapping. Tell me, since when is following the SUPREME LAW OF THE LAND "optional" by public servants?

Applicable law in the Several States clearly holds that contractual terms will be enforced per their usual and ordinary meaning. [see, e.g., Lehman v. Superior Court (2006) 145 Cal.App.4th 109, 115 ("under plain meaning rule, courts givethe words of the contract their usual and ordinary meaning")]. In other words, both California and the Several States’ law clearly holds that neither ANY public servant's real or alleged “subjective observation”, nor any elected official’s “subjective understanding” on the contractual language in the Bill of Rights or even Article I, Section 8, has any relevance to proper construction of agreed-upon terms by our Founding Fathers, i.e., the exclusionary effect of the 'plain meaning rule' holds that no person’s “subjective” intent, “opinion” and/or parol evidence may be considered when acting in an Official capacity on behalf of the People if such State Action contravenes the plain meaning of Constitutional or statutory language. [see, Id. at 115-116; see also 3 A. Corbin, Corbin on Contracts, Sections 535, 542 (rev. ed. 1960 & Supp. 1984)("plain meaning rule requires that themeaning of contractual language be determined solely by attaching the plain or usual meaning to words that appear clear and unambiguous on the face of an agreement").

That's the law on "how to interpret contracts."

In terms of our Supreme Court precedent that touch and concerns wiretapping and the 4th Amendment? See, Scott v. United States (1978) 436 U.S. 128 ("every wiretap must be conducted in such a way as to minimize the interception of communications not otherwise subject to interception"). 


How is can the NSA seize such a vast amount of data, records and privileged communications in blatant disregard of precedent and the EXPRESS language of the 4th Amendment…with ZERO probable cause and ZERO limitations on course and scope of the intrusion?

"Wiretapping is a dirty business." - Chief Justice Taft

In other contexts of such State Action that touch and concern deprivation of liberty or Due Process interests (see, e.g., Parham v. J.R., 442 U.S. 584) the “victim” is entitled to a “review by a neutral factfinder”…but not when the United States’ (1) Diplomatic unity with our trusted European Allies is suffering immediate and/or potentially irreparable harm and/or (2) when the United States’ People have their Substantive Due Process Rights to receive the civil liberties contained within the 4th and 5th Amendments is the “victim”? It is axiomatic that "the Due Process Clause was intended to secure an individual from an abuse of power by government officials.” Daniels v. Williams (1986) 474 U.S. 327. The refusal of the State to enjoin the egregious breaches of our Supreme Court’s precedent on the area of wiretapping and electronic seizures by the NSA constitutes an abuse of power in itself. There is ample case law expressly holding it is per se UNCONSTITUTIONAL. See, Scott v. United States, supra, 436 U.S. 128. The purported means/ends justifying the NSA's unfettered license to conduct the largest dragnet in the history of the World has (drumroll, please) proven to be as false as the purported WMD threat and/or nexus between 9/11 and Saddam. 


"Wrong must not win by technicalities." - Aeschylus