Senators Scrutinize Government’s Forthrightness in ‘Clapper v. Amnesty’

The senators also pressed the government on its honesty. The amendment’s disclosure demands to the government ask about how the government represented itself in Clapper v. Amnesty, a 5-4 Supreme Court case from February. Wyden, Udall and Sen. Martin Heinrich, D-N.M., wrote a letter, released Thursday, to Solicitor General Donald Verrilli Jr. (http://bit.ly/1bUzpum) pressing that issue. “Official records suggest the Court was given misleading information that appears to have informed the majority’s decision, and that some of these misleading statements have yet to be corrected,” they wrote in the letter. The Justice Department has not gone far enough to correct the record, the senators said. The concerns surround Foreign Intelligence Surveillance Act Section 702 and the majority opinion’s judgment as “highly speculative” plaintiff worries that the government will target the communications of U.S. citizens under that authority, which is used to monitor foreigners’ email communications. The government is able to collect information not just involving communications to and from overseas targets but simply from communications about such targets. The senators cite a 2011 FISA opinion mentioning that a provision of the authority leads to “’tens of thousands’ of wholly domestic communications every year.” The senators argue that this knowledge may not have necessarily changed the court’s decision but ask if this knowledge of potential domestic collection was communicated to the Supreme Court during the case or whether it was provided with the 2011 FISA opinion on the subject.

"We believe that a formal notification to the Supreme Court of the government’s misrepresentations in the case -- both relating to its notice policy and relating to its practice of ‘about’ collection under Section 702 of the FISA Amendments Act -- would be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court,” the letter said.

Sens. Richard Blumenthal, D-Conn., Ed Markey, D-Mass., Heinrich and Mark Begich, D-Alaska, joined as co-sponsors to the amendment, according to its record Thursday. Senators have by Thursday proposed more than 400 amendments to the bill, and on Wednesday, nearly half a dozen surveillance-focused amendments were attached. The filing deadline for all germane first-degree amendments was 1 p.m. Thursday due to a cloture vote. Second-degree amendments were due by 5 p.m. Senate Democratic leaders have expressed a desire to pass the bill by Thanksgiving.

"I know as well as anyone this is a must-pass bill,” said Udall, chairman of the subcommittee on strategic forces, of the defense authorization bill. “And while I think Senator Wyden and I would agree that this week’s debate on the National Defense Authorization Act is not the right time for a full comprehensive debate on surveillance reform, I do believe it is the right time to begin that conversation.” Both senators stressed they wanted an amendment senators of all stripes can rally around. Mikulski had voted for the FISA Improvements Act of Senate Intelligence Chairman Dianne Feinstein, D-Calif, a bill Wyden, Udall and Senate Intelligence member Heinrich voted against and slammed for its preservation of bulk collection.

This amendment doesn’t end bulk collection of any type, just demands transparency, said Wyden. He called the NSA an “integral part” of the Department of Defense: “This amendment is clearly germane to the bill.” The amendment will have “broad support in this body” and is “the perfect way to frame and begin what will become a fulsome debate over the next few months,” Udall said. Wyden agreed, calling the amendment “something we believe can bring together all senators.”

In September, Wyden and Udall had introduced with two other senators a comprehensive overhaul that would end bulk collection of phone metadata, and in recent weeks, they signed on as co-sponsors to the USA Freedom Act, introduced by Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. “We were thrilled that Chairman Leahy went on our bill, and we went on his bill because it illustrates the need to try to make common cause around these issues,” Wyden said, referring to Leahy joining as a cosponsor on his legislation earlier this month when Wyden cosponsored the USA Freedom Act.

Blumenthal also spoke on the Senate floor and praised Wyden and Udall for “their relentless courage in blowing the whistle” against surveillance and briefly mentioned his own amendment, which would provide for an adversarial process in the FISA Court. Blumenthal had joined the two senators, along with Sen. Rand Paul, R-Ky., in their earlier September proposal and now co-sponsors Leahy’s USA Freedom Act, as does Heinrich.