Sensenbrenner Slams Feinstein’s NSA Bill, Trumpets USA Freedom Act: ‘We'll Win’

The political debate unfolded hours after intelligence officials declassified new troves of documents relating to surveillance authorities and as the Senate considers S-1197, the National Defense Authorization Act. Sen. Ron Wyden, D-Ore., wants to use defense reauthorization to debate surveillance, an already tense issue, with several bills on the table. In September, Wyden introduced his own legislation to end bulk collection of metadata, and early this month signed onto the USA Freedom Act as a cosponsor.

Wyden “is talking with colleagues on both sides of the current surveillance debate to find ways to set the record straight about surveillance authorities and address flagrantly misleading and incomplete statements made by intelligence officials,” a Wyden spokesman told us. “He believes the current defense authorization bill provides an opportunity to jumpstart the debate on surveillance reform and work with senators with differing views to improve transparency and accountability.” The Senate voted 91-0 Monday to invoke cloture on the motion to proceed on the defense authorization bill, and senators debated its provisions Tuesday. On the Senate floor, Majority Leader Harry Reid, D-Nev., said the “important” bill shouldn’t be “bogged down by unrelated political issues.”

More than 100 amendments have been proposed for the defense authorization bill, but none yet touch on National Security Agency surveillance. Senate Armed Services Committee Chairman Carl Levin, D-Mich., emphasized the push to get the bill passed before Thanksgiving. “We hope to have a first package of cleared amendments ready later today,” Levin said on the Senate floor Tuesday. Wyden is a Senate Intelligence Committee member but also has loudly criticized the NSA surveillance programs and a proposal that emerged from Senate Intelligence Chairman Dianne Feinstein, D-Calif. The USA Freedom Act would end Patriot Act bulk collection of phone metadata by raising the standards the government must meet to get a court order under that Section 215 authority, amend Foreign Intelligence Surveillance Act Section 702 surveillance of email, create an adversary within the FISA court and make other changes.

Sensenbrenner slammed Feinstein’s FISA Improvements Act. That bill, S-1681, cleared Senate Intelligence Oct. 31 and promises “unrestrained spying on Americans,” Sensenbrenner said, saying Senate Intelligence leaders have “abdicated leadership and responsibility.” At a Cato Institute event last month, Sensenbrenner also criticized a potential proposal being developed in the House Intelligence Committee and predicted a fight between supporters of his bill and that one (CD Oct 10 p5). Leahy recently said he wants to settle the differences between the USA Freedom Act and the FISA Improvements Act by Judiciary Committee vote (CD Nov 19 p4).

But a federal intelligence official shot back in defense of surveillance and said the administration favors Feinstein’s bill, which does not end bulk collection. “We do not want to see the metadata program go away,” said Office of the Director of National Intelligence General Counsel Robert Litt during a panel at the event. “We've spent a lot of time looking at the operation of these programs, and I think there are some changes that could be made that could provide additional protections of privacy” without compromising efficacy. Feinstein’s FISA Improvements Act “is one [bill] we think actually achieves that, one, by actually codifying into law” certain provisions in FISA court orders, and regarding the metadata, “imposing greater limits on the extent to which we can make queries and the amount of time we can hold the information,” Litt said. Intelligence officials would support the introduction of amicus curiae -- which is included as an amendment in Feinstein’s bill -- to the FISA court, according to Litt.

Congress faces two dozen bills focused on NSA surveillance, with a dozen comprehensive FISA packages, 10 of which would end bulk collection, said Georgetown Center on National Security and the Law Director Laura Donohue. Of the declassified documents made available Monday, Donohue highlighted the opinions from FISA court judges Colleen Kollar-Kotelly (http://1.usa.gov/1fcPMFR) and John Bates (http://1.usa.gov/1gZwy7b) about email metadata collected under Section 402 of FISA. There are also 16 lawsuits working through the courts, she said.

The American Civil Liberties Union strongly favors the USA Freedom Act, said ACLU Center for Democracy Director Jameel Jaffer. But that bill has “got to be just the beginning,” Jaffer said, pointing to surveillance authorities done outside the scope of these provisions in sections 215 and 702 and other structural changes, such as better protection for whistleblowers. The government documents declassified Monday describe some of the activities under Executive Order 12333 and other authorities, Jaffer said. Sensenbrenner and Leahy hope that by “fixing” sections 702 and 215, the federal government won’t simply try to resume the same surveillance using different authorities, Sensenbrenner said. Litt disputed that there’s any “dragnet surveillance” under Section 702 when Jaffer used that phrase. “There’s a requirement that we target under 702,” Litt said. Yet Electronic Privacy Information Center President Marc Rotenberg countered that Section 215 bulk collection of phone records is definitely dragnet collection, which Litt did not dispute but said is used in specific circumstances.

The Supreme Court declined to review EPIC’s challenge to surveillance, it announced Monday. EPIC does not believe Section 215 actually authorizes bulk collection, partly due to the interpretation of the word “relevance,” as Sensenbrenner mentioned, Rotenberg said. Sensenbrenner said this interpretation turns “relevance” on its head and “subverts congressional intent,” as “the legal standard devolves to nothing more than ’trust us.'"

Three senators also stepped into one NSA court case this week. Wyden joined with two other Senate Intelligence members, Sens. Mark Udall, D-Colo., and Martin Heinrich, D-N.M., to challenge the programs in an amicus brief they filed Tuesday in First Unitarian Church vs. NSA in the U.S. District Court in San Francisco. Bulk collection did not yield intelligence the government could not have acquired through less intrusive means, the senators said (http://bit.ly/1fSwEuz). The senators also argue that the government’s Section 215 searches could be used for other collections than call records, and the court “should thus treat with skepticism the government’s claim that its use of the statute is cabined by the supposedly unique characteristics of call records.” The ACLU prepared their brief.

To say the U.S. government is abusing surveillance authorities is like saying the Health and Human Services Department is abusing people because the Affordable Care Act website isn’t working, Litt said, citing “complicated technology systems” that do not always work as expected. “There will be compliance issues, there will be mistakes,” said Matthew Olsen, a former NSA general counsel and director of the National Counterterrorism Center. But there have been very few instances of intentional misconduct, Olsen said. Section “215 has been effective” and should continue, Olsen said, saying it may be appropriate to limit the data retention period and how it’s used. But “it’s a misimpression to simply think it’s the government trolling through data.” “NSA really substantially revamped their own approach to compliance,” Litt said of declassified documents showing oversteps. “Are they perfect? No. You have a system run by human beings and they're going to make mistakes.” The technology is also complicated, he said.

A recent trip to Brussels highlighted Europeans’ concern about their protection from surveillance under Section 702 of FISA, Sensenbrenner said. “I was accused of giving a vague answer” on whether the USA Freedom Act addresses foreigners’ protection, he said. But European Commission Vice President Viviane Reding is meeting with U.S. Attorney General Eric Holder this weekend, and Sensenbrenner’s answer depends on “the outcome of those negotiations,” he said. “And I want to hear from both of them so I don’t get spun into the wrong direction.” He said, based on his conversations in Europe, U.S. tech and telecom companies will likely lose “an awful lot of business with Europe” unless the Section 702 and 215 authorities are not amended.