Senators want advocate for Constitution added to secret FISA court hearings

McClatchy Washington BureauAugust 1, 2013 

— Three key members of the Senate introduced legislation Thursday that would change the way the country’s secret Foreign Intelligence Surveillance Court functions and how its members are selected, the latest sign that the uproar over leaks by former National Security Agency contractor Edward Snowden is likely to have a lasting impact on the country’s intelligence practices.

The unveiling of the bills came the same day that President Barack Obama hosted nine members of Congress at the White House “to hear from some of the programs’ most prominent critics and defenders,” the White House said in a statement. The statement called the meeting constructive and said the president “and his team” were committed to working with Congress on the issues.

One of the bills, the FISA Court Reform Act of 2013, unveiled by Sens. Ron Wyden, D-Ore., Tom Udall, D-N.M., and Richard Blumenthal, D-Conn., would require the court to hear evidence from a public interest legal advocate “whose client would be the Constitution” whenever the court is considering requests for surveillance programs. Currently, only attorneys for the government appear before the court, which has rejected just 11 government requests in the more than three decades it’s been operating.

A second bill, the FISA Judge Selection Reform Act, would change the way judges are selected for the court. Currently, the chief justice of the Supreme Court chooses the Foreign Intelligence Surveillance Court’s membership, but critics of the court have said recently that Chief Justice John Roberts Jr. has steered appointments to judges who were named to their posts by Republicans and had worked previously as lawyers and prosecutors for the federal government.

Wyden, a longtime critic of the NSA’s sweeping data-collection programs, said the bills would improve oversight of the intelligence system and correct an imbalance that had resulted in secret rulings that had expanded the government’s surveillance powers under the Patriot Act in a way lawmakers had never intended.

“This is the court that, in effect, allowed this new definition of relevance under the Patriot Act to lay bare the personal lives of hundreds of millions of law-abiding Americans,” he said. “I think it’s worth noting there was nobody there to offer the other side.”

How the bills will fare in the Senate is uncertain. Key Democratic leaders in the body have defended the collection of so-called metadata on people’s email and telephones, echoing Obama administration insistence that such collection is legal and subject to court-imposed privacy protections. U.S. officials say that government officials review little of the collected data.

But the legislation comes amid what appears to be growing anger in Congress over the extent of the programs, which include a Foreign Intelligence Surveillance Act court order to cellphone companies to provide the NSA with their customers’ call records on a daily basis, including details of what numbers the customers called, where they were when they made those calls, where the called phones were and how long the conversations lasted.

Last week, the House of Representatives narrowly voted down a measure that would have defunded that collection program by a surprisingly close 217-205, and lawmakers from both parties have been critical of the programs in recent hearings.

Rep. Jim Sensenbrenner, R-Wis., a member of the House Judiciary Committee and author of the Patriot Act, told NSA officials during a hearing last month that if the agency doesn’t change tactics, it will lose the Patriot Act provisions that have allowed the programs to exist.

“Section 215 expires at the end of 2015, and unless you realize you’ve got a problem, that is not going to be renewed,” he said.

Sensenbrenner’s colleagues on the Senate Judiciary Committee were equally critical this week, challenging officials’ claims that the programs have helped thwart dozens of terrorist plots aimed at the United States. Committee Chairman Patrick Leahy, D-Vt., said he hadn’t seen justification for the sweeping collection of telephone records, despite being provided with a list of terrorist attacks the program supposedly had helped prevent.

“So far, I’m not convinced by what I’ve seen,” he told officials Wednesday.

Leahy has introduced a bill that would rein in some of the agency’s data collection capabilities and would require that it report the details of its activities to congressional committees. Another senator, Al Franken, D-Minn., said Wednesday that he planned to introduce legislation that would require the NSA to reveal how many Americans it collects information on.

"The government has to give proper weight to both keeping America safe from terrorists and protecting Americans’ privacy,” Franken said. “When everything about these programs is secret and when the companies involved are under strict gag orders, the American public has no way of knowing whether we’re getting that balance right. I think that’s bad for privacy and bad for democracy."

Among the critics of the programs at the White House meeting were Wyden and Sensenbrenner as well as Sen. Mark Udall, D-Colo., and Rep. Robert Goodlatte, R-Va. Defenders of the programs included the chairs of both intelligence committees, Sen. Dianne Feinstein, D-Calif., and Rep. Mike Rogers, R-Mich., and the committees’ ranking members, Sen. Saxby Chambliss, R-Ga., and Rep. C.A. Dutch Ruppersberger, D-Md. Sen. Richard Durbin, D-Ill., the assistant majority leader, was also present, the White House said.

White House spokesman Jay Carney said Obama had invited the lawmakers to the White House because although he "believes a balance has been found," he "also thinks that there ought to be a debate about these issues."

"The fact is our intelligence services need to have tools available to them to help protect our national security interests, to protect us from attack," Carney said. "I don’t think that we can sensibly say that programs designed to protect us from terrorist attack, you know, are not necessary in this day and age."

He said administration officials were working to meet Congress’ questioning of the programs.

"We are undertaking an effort to evaluate these programs and . . . provide more information where that can be done in a way that doesn’t compromise further our security," Carney said. But he added, "some of what we do to make sure that the United States is protected and that our interests are protected has to, by necessity, be secret."

CORRECTION: An earlier version of this story wrongly said that Sen. Tom Udall, D-N.M., was among those whom President Barack Obama met with Thursday.

Email: awatkins@mcclatchydc.com, lclark@mcclatchydc.com; Twitter: @alimariewatkins, @lesleyclark

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