Surveillance Compels New Laws and Oversight, Leahy, Former Church Committee Members Say
U.S. surveillance practices must be reconfigured in many ways to end a system gone wrong, said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., Tuesday. “In my view, and I've discussed this with the White House, the [Patriot Act] Section 215 bulk collection of Americans’ phone records must end,” Leahy, an author of surveillance overhaul legislation, told a crowd at a Georgetown University Law School event. “It’s not making America safer.” He and former members of the Church Committee, which helped create the Foreign Intelligence Surveillance Court in the 1970s, advocated for major changes to the transparency and oversight tools the Church Committee created.
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Leahy slammed the way the National Security Agency has collected bulk phone records. “They didn’t understand it and they didn’t accurately report it to the court,” Leahy said, “and they're doing it all in secret and the court doesn’t have the advantage of their being an adversarial process where somebody says, ‘What about this?'”
Leahy plans a classified briefing Wednesday for members of the Judiciary Committee, which will hold an open hearing Oct. 2. The Senate Intelligence Committee will address these same issues Thursday in a 2 p.m. open hearing in 216 Hart. That Senate Intelligence hearing will have two witness panels, the committee said Tuesday, first a panel with Director of National Intelligence James Clapper, NSA Director Keith Alexander and Deputy Attorney General James Cole, and then one with the Brookings Institution’s Ben Wittes and Tim Edgar of the Brown University Watson Institute for International Studies. Leahy expects “open and candid testimony” from Clapper and Alexander in the Senate Judiciary hearing, he said. On Monday, Leahy and several Judiciary Committee members from both parties sent a letter to Inspector General of the Intelligence Community Charles McCullough asking for a comprehensive surveillance review (CD Sept 24 p14). Privacy advocates told us last week that Leahy’s legislation, which would end bulk metadata collection and increase FISC accountability, is one of the strongest among many such bills in Congress (CD Sept 23 p5).
U.S. surveillance has provoked an uproar internationally as well as domestically, with Brazilian President Dilma Rousseff attacking the U.S. before the United Nations Tuesday for alleged intrusions (http://bit.ly/180crzt).
The FISA court was not meant to authorize dragnet surveillance, and the system is “no longer working,” Leahy said Tuesday. “We have to recalibrate.” The court is no longer simply reviewing wiretap applications and instead has “assumed a regulatory role not envisioned” by original FISA backers, he said. But the judges aren’t “an unthinking rubber stamp,” Leahy said. Marc Rotenberg, executive director of the Electronic Privacy Information Center, countered during questions that “you do get the impression that it’s a rubber stamp court” due to limited public reporting, which fails to show debate or opinions. Rotenberg wants a system that promotes transparency and improves the public reporting involved, he said.
"I'm going to recommend we establish some kind of follow-on Church Committee, and I hope they examine all these issues,” said former Vice President Walter Mondale, who belonged to the original committee as a Minnesota Democratic senator. He praised the mechanisms it created, but said they now work “not as fully and completely as we had intended. These [congressional] committees are under tremendous pressure to work with the agencies.” With the FISA court, “we thought we were setting up a limited court that would deal with warrants wanted to investigate specific cases for persons thought to be involved in spying,” which has “changed an awful lot since then,” Mondale said, lamenting “no adversarial proceeding.” He criticized the rarity of appeals and pointed to evidence the court is now taking cases that should go to “regular federal courts.” A new Church Committee should look at the FISA court “to make sure it’s more closely contained in what we thought were the right parameters,” Mondale said.
"Vice President Mondale’s exactly right -- we need another Church Committee to look at that [FISA] process,” said former Sen. Gary Hart, D-Colo., also part of the Church Committee. No one had envisioned agencies “Hoovering up” the communications records of Americans back then, he said, worrying about the loss of society’s “grand bargain” of loyalty in exchange for security. Hart described himself as discouraged by the high percentage of warrant approvals from the FISA court and said it’s a sign the law “ought to be amended,” with a public advocate involved.
"The Senate Judiciary Committee will continue to play its key oversight role,” Leahy said. He’s working with House Crime and Terrorism Subcommittee Chairman Jim Sensenbrenner, R-Wis., and Sen. Mike Lee, R-Utah, “on a legislative solution,” he said. Recent surveillance remarks from House Judiciary Chairman Bob Goodlatte, R-Va., also left Leahy “encouraged,” Leahy said, noting he is also consulting with Goodlatte. He pushed for more bipartisan cooperation in reconfiguring surveillance practices, saying, “We've got to come back to that, for the good of the country.”
In calling for a new Church Committee, speakers praised the original new one. Leahy called its creation “a watershed moment in history,” similar to the dramatic moment the U.S. faces now, he said. Hart described “a visceral sense” of the government’s intruding too much in the 1970s. “I credit the Church Committee with the oversight powers we now have,” Leahy said, pointing to “sinister” smear campaigns against civil rights leader Martin Luther King Jr. that the committee unearthed. “They weren’t investigating facts, they were out to get Martin Luther King, to damage his marriage, to block his Nobel Peace Prize,” Mondale said. “This is one example of what can happen if we don’t protect the law and individual rights in our society.” William Miller, a Church Committee staff director, tied the committee’s creation to a breakdown of confidence between the presidency and Congress in the Gulf of Tonkin Resolution authorizing expansion of the Vietnam War. Mondale said these abuses played out in a bipartisan fashion. “Presidents saw the intelligence agencies as an extension of their own private power, which indeed they were,” Mondale said, criticizing what the committee saw as “a secret, unaccountable world within our own government.” The executive branch must share information with the oversight committees, and lawmakers on the committees must attend the meetings and read the reports, said Loch Johnson, once assistant to former Sen. Frank Church, D-Idaho, and now a political science professor at the University of Georgia.
Johnson said everyone at the event wants the U.S. to thwart terrorist attacks, but no one wants “the United States to become North Korea, the ultimate surveillance state, where everyone is watched and listened to by the government.” He slammed the NSA’s “vacuum cleaner approach.” Leahy questioned its effectiveness. “Just think about it logically,” he said. “If you're collecting everything, in some ways you could say you're collecting nothing. How could you ever go through it?” The NSA’s practices in collecting phone metadata are “so alien” and “upside down” compared with what committee members envisioned decades ago, Mondale said. “I think that’s why Pat Leahy is trying to close that door again.”
"It is not an either/or thing, your privacy and national security,” Leahy said, calling for public discussion of surveillance in a way that would not endanger U.S. security. “We like our privacy, we like our oversight, we like having our elected officials know what the heck is going on.”