Senators Peg Nearly Half-Dozen NSA Surveillance Amendments to Defense Bill

Sens. Al Franken, D-Minn., and Dean Heller, R-Nev., attached their own surveillance overhaul bill to the bill, a Franken spokesman told us. Franken “will continue working to help the American people reach an informed opinion about government surveillance,” the spokesman said. Franken and Heller together dropped the Surveillance Transparency Act, S-1621, earlier this month and held a Privacy Subcommittee hearing on that legislation. That amendment calls for enhanced public reporting on FISA orders and an attorney general report every April on the total number of applications for and extensions of electronic surveillance orders, as well as how many such applications were granted and how many people those affected. It must include enhanced reporting for pen registers and trap-and-trace devices, the amendment said. The amendment would also allow those subject to such government requests to more easily disclose them and with greater detail, as Franken and Heller’s NSA bill has proposed.

Three Senate Democrats proposed an amendment on NSA transparency, demanding more information from the government. The amendment is the product of Sens. Ron Wyden, D-Ore., Mark Udall, D-Colo., and Barbara Mikulski, D-Md. A Wyden spokesman told us earlier this week that Wyden viewed the bill as “an opportunity to jumpstart the debate on surveillance reform and work with senators with differing views to improve transparency and accountability” (CD Nov 20 p6).

A copy of that seven-page amendment provided by Wyden’s office would add a new section to the General Provisions section of S-1197, with four subsections. These sections would require the attorney general to release any rulings from the Foreign Intelligence Surveillance Court (FISC) finding the government has violated the law or Constitution. The attorney general would have the freedom to release the full court opinion or a redacted or summarized version. Another subsection instructs the Government Accountability Office to conduct a study on the economic impact of the year’s surveillance revelations.

According to the amendment, the director of national intelligence must provide a written report to Congress within 90 days addressing whether intelligence agencies have ever done warrantless searches for communications of individual American citizens collected under FISA’s Section 702, which is intended to target non-U.S. persons. The request asks for a number or estimate of such searches, if they have happened. It also asks whether the NSA ever did bulk collection of Americans’ cell site location information, a point Wyden has hammered intelligence officials on in open hearings. Earlier this year, intelligence officials revealed limited testing of such cell site location collection, which they said was discontinued. The amendment request asks how much evidence the Office of the Director of National Intelligence believes is necessary for the collection of geolocation information and exactly when the government began collecting in bulk U.S. citizens’ records under the authorities of FISA and the Patriot Act. It asks whether the government accurately represented itself in Clapper v. Amnesty. The government would have to tally the FISC opinions on Patriot Act Section 215 bulk collection as well as FISA Section 702 collection that name violations of the law, Constitution, or earlier orders from the FISC. The director of national intelligence would have to make this report public, but could do so in redacted versions.

Sen. Bernie Sanders, I-Vt., wants enhanced privacy protections under FISA, in an amendment he submitted. The amendment sets out to limit overbroad surveillance requests and amends FISA Section 501 to do so. It also proposes expanding FISA reporting requirements. Sanders “introduced this language in June when the first revelations about the NSA’s surveillance programs came to light,” his spokesman told us. “The amendment would require a heightened standard of review for applications to wiretap phones under Section 215 of the Patriot Act. It would also require greater disclosure to Congress and the American public about the scope of the NSA’s requests. The NSA clearly needs to be reined in, and the Defense Authorization provides an appropriate vehicle for change, in that the DoD houses the NSA.”

Sen. Rand Paul, R-Ky., dropped an amendment, jointly submitted with Wyden and Udall, called “Challenges to Government Surveillance” and focusing on Section 702 monitoring. That amendment proposes that any person believing themselves subject to such surveillance and “has taken objectively reasonable steps to avoid surveillance under this section” has suffered an injury in fact, referring to civil court claims. “A person shall be presumed to have demonstrated a reasonable basis to believe that the communications of the person will be acquired under this section if the profession of the person requires the person regularly to communicate foreign intelligence information with persons who (A) are not United States persons; and (B) are located outside the United States,” that amendment said. Mikulski and Sen. Dan Coats, R-Ind., also introduced an amendment to the defense authorization bill demanding Senate confirmation of the head of the NSA.

Wyden, Udall and Paul introduced their own NSA overhaul in September with Sen. Richard Blumenthal, D-Conn. Paul’s amendment is a provision from that bill, Wyden’s spokesman said. Wyden and Udall now co-sponsor the USA Freedom Act, S-1599, introduced in the Senate by Judiciary Committee Chairman Patrick Leahy, D-Vt. A Leahy spokeswoman cited past Leahy statements discouraging any NSA updates through the defense authorization bill when asked Tuesday. (jhendel@warren-news.com)