Intelligence Community Oversight: The “Reforming Congress” Angle

The Sunlight Foundation and dozens of other groups today issued a letter to House leadership and a proposal with dozens of suggested/needed reforms to how Congress conducts oversight of the Intelligence Community. The proposed reforms are thoughtful, eminently reasonable, well thought-out and badly needed. For more info, click here.

#NSAOversight

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The Dark Night Of The American Soul

It was inevitable. Polling on the Senate torture report, that is, in this case from Pew. Here’s the key graphic:

More Say CIA Interrogation Methods Were Justified than Unjustified

Just a reminder to everyone: torture is a crime under U.S. law. No exceptions, period. Would have loved to see Pew ask whether it would have been justified to waterboard Timothy McVeigh and Terry Nichols to see if they had co-conspirators. What Pew did with its poll on the Senate torture report is effectively present not a truly objective question on the issue of whether torture was permitted under U.S. and international law, not a question seeking to understand whether the public knew torture was ineffective based on centuries of repellent experience, but whether it was justified regardless of its illegality.

And I thought this paragraph was particularly telling:

While the report on the CIA’s interrogation methods captured much of Washington’s attention, it was not the public’s most closely followed story last week. Overall, 23% followed news about the release of the Senate report on CIA interrogations very closely; more (35%) paid very close attention to news about protests around the country in response to police-related violence.

Did Pew even ask if poll respondents read even portions of the report…say, the executive summary? No.

So Pew asked a group of Americans who were barely paying attention to the news reports on this topic and who, so far as I can tell, were not even polled on whether they’d read a single word of the report, whether they thought the CIA’s torture tactics were “justified”. If you’re looking for the real explanation as to why George Tenet, Michael Hayden, Porter Goss and other former and current CIA officials will never be held accountable for their initiation and management of America’s first publicly acknowledged torture program–and why a future torture program remains a possibility–Pew Research just gave you the answer.

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Intel Authorization Bill Would EXPAND Surveillance Against Americans

Below is the full text of the Dear Colleague circulated this afternoon by Rep. Justin Amash (R-MI):

Block New Spying on U.S. Citizens: Vote “NO” on H.R. 4681

Dear Colleague:

The intelligence reauthorization bill, which the House will vote on today, contains a troubling new provision that for the first time statutorily authorizes spying on U.S. citizens without legal process.

Last night, the Senate passed an amended version of the intelligence reauthorization bill with a new Sec. 309—one the House never has considered. Sec. 309 authorizes “the acquisition, retention, and dissemination” of nonpublic communications, including those to and from U.S. persons. The section contemplates that those private communications of Americans, obtained without a court order, may be transferred to domestic law enforcement for criminal investigations.

To be clear, Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of U.S. persons’ private communications obtained without legal process such as a court order or a subpoena. The administration currently may conduct such surveillance under a claim of executive authority, such as E.O. 12333. However, Congress never has approved of using executive authority in that way to capture and use Americans’ private telephone records, electronic communications, or cloud data.

Supporters of Sec. 309 claim that the provision actually reins in the executive branch’s power to retain Americans’ private communications. It is true that Sec. 309 includes exceedingly weak limits on the executive’s retention of Americans’ communications. With many exceptions, the provision requires the executive to dispose of Americans’ communications within five years of acquiring them—although, as HPSCI admits, the executive branch already follows procedures along these lines.

In exchange for the data retention requirements that the executive already follows, Sec. 309 provides a novel statutory basis for the executive branch’s capture and use of Americans’ private communications. The Senate inserted the provision into the intelligence reauthorization bill late last night. That is no way for Congress to address the sensitive, private information of our constituents—especially when we are asked to expand our government’s surveillance powers.

I urge you to join me in voting “no” on, H.R. 4681, the intelligence reauthorization bill, when it comes before the House today.

/s/

Justin Amash
Member of Congress

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NSA Reform: When 293 Votes Is Not A Majority

Late this afternoon, I was informed that the only NSA reform measure to pass either chamber of Congress this year–the Lofgren/Massie amendment to the FY15 DoD approps bill–is being stripped out of that bill as part of the House-Senate deal on the so-called “CRomnibus”. I wrote about this amendment and it's importance recently, but the consequences of not getting it into law seem to have escaped folks in the Congressional leadership. Let me recap.

To date, the Congress as an institution has failed to pass into law a single provision to rein in the NSA's out-of-control blanket surveillance of every American. Congress has also failed to stop NSA and the Justice Department from pressuring American tech companies to build in surveillance “back doors” to their products to facilitate NSA surveillance (“back doors” which would, of course, also be exploitable by every hostile intelligence service and competent hacker in the world). So if the Massie/Lofgren amendment is ripped out of the DoD appropriations bill, the message from the House and Senate leadership will be clear: the Fourth Amendment is history, and if U.S. businesses continue to be seen as tools of NSA (and lose billions in sales and thousands of jobs in the process), so be it…because, ISIS/9-11/whatever.

The fight over the Constitution centered around increasing individual protections against an over-reaching government. Anti-federalists warned at the time about the dangers of standing armies and permanent military establishments, which is why they opposed both and opposed an overly-powerful executive branch. The last 13 years have given us more than ample proof that their fears were both prophetic and justified.

Despite their sweeping nature, the PATRIOT Act and FISA Amendments Act (FAA) are clearly viewed by the executive as at best minimalist frameworks within which they can find clever ways to still take the action they desire; they do not regard these laws as truly legally-binding “red lines” not to be crossed…unless a federal court outright rules the activity unconstitutional, and the court actually has to be aware of the program in order to be able to render such a ruling.

Remember that the ink on the 2001 AUMF was not even dry when they started STELLAR WIND…and once the program became public via Jim Risen’s piece in December 2005, Congress went through contortions for nearly three years trying to make it legal ex post facto, first via the PAA and ultimately with the FAA.

Viewing statutes and courts as obstacles to be overcome or bypassed is behavior that will not cease until the executive branch is confronted with an obstacle they cannot overcome…or real legal and/or oversight consequences they cannot escape.

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Udall, The Torture Report and The Pentagon Papers Option

Shortly after Colorado Senator Mark Udall lost his reelection bid to Rep. Cory Gardner, it began–first as conversations among civil liberties activists, then in media outlets, and finally Udall himself raised the possibility: on his way out of the Senate, he might release all or at least portions of the long CIA-stonewalled Senate Select Committee on Intelligence report into the Agency's long-infamous torture program from the Bush 43 era. The Atlantic's Conor Friedersdorf went much further, arguing that Udall should take the opportunity to release what he knows about a range of Intelligence Community (IC) misconduct. The basic theme is that in doing so, Udall would be a hero (true for many people, less so for others) and the country would get a better idea about the totality of the IC's misdeeds. It would also, in theory, reignite the faltering IC reform effort.

Would it work? History suggests the answer is probably “no”–at least not just the act of dumping politically explosive classified information onto the press in the hope of spurring changes in policy.

For those of you who are pondering this weighty issue, if you have not taken the time to watch The Most Dangerous Man In America, do so. It's the story of a government official with a conscience who made the decision to put the Pentagon's secret history of the Vietnam War into the public domain at the very time anti-war protests were rocking the nation. I'm of course talking about the legendary Daniel Ellsberg and the Pentagon Papers case.

In the documentary, Ellsberg laments–in the wake of the disclosures he made, the publicity, his prosecution and the related lawsuits–how all of his efforts did not lead his fellow Americans to demand an immediate end to the war. Nixon was reelected in a landslide. The war ground on for several more years. And only one sitting member of Congress–Senator Mike Gravel of Alaska–had the courage to read the entire Pentagon Papers into the Congressional Record to ensure they stayed in the public domain. The Nixon administration sued Gravel in federal court, with the Supreme Court ultimately deciding that the Constitution's speech and debate clause provided any House or Senate member with a legal shield for making such disclosures.

It is certainly true that other abuses of executive power came to light over the next few years–specifically, the surveillance abuses by the National Security Agency (NSA), the Central Intelligence Agency (CIA), and the Federal Bureau of Investigation (FBI). And it was those revelations that led to the creation of the Foreign Intelligence Surveillance Act (FISA) and the two Congressional intelligence oversight committees. Yet just three years after FISA became law, newly elected President Ronald Reagan signed an executive order that former State Department official John Napier Tye has alleged has allowed NSA to effectively circumvent FISA and capture virtually unlimited quantities of the overseas communications of Americans. Given the scope of the revelations by former NSA contractor Edward Snowden, Tye's allegations are entirely believeable–another argument for Udall to spill what he knows while he can do so behind the shield of Speech and Debate.

But a one-off dump of classified information–no matter how voluminous or sweeping–will likely not have the beneficial effects proponents hope for. That was the case with Ellsberg's revelations, and has thus far been the case with Snowden's. A real reform effort is not based on single actions, no matter how dramatic. They can provide the spark, but the fuel to keep the movement going and growing requires the commitment of thousands, and ultimately millions.

It's worth noting that no House or Senate member has since followed Gravel's (in my view) courageous and constitutionally necessary example. Fear of expulsion from Congress or facing “soft-on-terrorism” attack ads in the next election cycle are powerful disincentives for going down that road. But Udall's defeat means those disincentives don't apply–assuming he has no plans to run for office again. Which brings me to why I think Udall should chose another option: running for president in the 2016 Democratic primary.

To conventionally-minded Democratic strategists–the ones that just lost the Senate, that is–such an approach would seem insane. Udall just lost, not just the election but the platform that is the United States Senate, they will argue. And my response is, “Exactly”.

Udall is free to pursue his own political path. He has done more to push for real checks on the National Security State than any Democrat in either chamber, giving him a moral authority no other Democrat thinking of running for president can hope to claim. And he can still talk about the abuses that have come to light, just as he can talk about what else the American public should know and why rolling back the Surveillance State is necessary to restore our liberty and secure our economic future. If the American tech sector comes to be viewed globally as simply the corporate arm of NSA, hundreds of thousands of jobs will be lost and our technological destiny will be decided by others, not us. Udall could be that leader and messenger for a different and better path forward, but not if he takes an action that allows his opponents to dub him “Senator Snowden”.

 

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Surveillance Reform: House Mid-term Election Impact Update

While seven House races remain undecided, what we do know is that seven House members who voted for the Massie/Lofgren/Holt NSA surveillance reform amendment to the FY15 DoD appropriations bill were defeated on election night. They are Shea-Porter (NH-1), Garcia (FL-26), Schneider (IL-10), Rahall (WV-3), Bishop (NY-1), Enyart (IL-12), Maffei (NY-24), and Horsford (NV-4). Incoming Rep. Blum (IA-1) made surveillance reform a part of his campaign, so he represents a pick up. While some of the remaining undecided House contest may result in a few more losses of Members who voted for surveilance reform one or more times, those losses would be of negligible, if any, impact for surveillance reform efforts. Accordingly, my previous prediction stands: the overwhelming majority of House members who supported the Massie/Lofgren/Holt amendment will be back for the 114th Congress.

Finally, I want to take a moment to respond to a recent post by law professor Steve Vladek. Vladek has repeatly accused libertarian-leaning Republicans of what he refers to as “libertarian hijacking” of certain national security issues, particularly surveillance reform. You can read his piece in full at the link above but here is the key section:

Instead, what strikes me as far more likely in the 114th Congress, especially if there is an open rift between the libertarian and centrist elements of the Republican caucus, is what I worried about last March–that national security policy will become increasingly prone to “libertarian hijacking,” where the wings align just long enough to (1) shift the terms of public debate to a contrived non-issue (e.g., using drones to kill Americans sitting peacefully at U.S. cafes); (2) extract some kind of wholly gratuitous concession from the government (e.g., no targeted killings of Americans peacefully sitting at U.S. cafes); and then (3) proclaim victory and depart the field without actually addressing the far harder question of U.S. policy (e.g., under what circumstances should targeted killings of terrorism suspects located overseas be authorized?). This was the precise result of the contretemps over the FY2012 National Defense Authorization Act (all of the attention focused on whether the statute authorized detention of U.S. citizens within the United States); and the “Stand-with-Rand” filibuster of John Brennan’s nomination to be CIA Director (targeted killings at domestic cafes).

Given the increase in both real and perceived power that Republicans in general–and libertarians in particular–will likely claim in the 114th Congress, libertarian hijacking seems a distinct possibility on a host of national security issues. Indeed, it may end up happening with surveillance reform. After all, it is entirely possible that libertarians will see the USA FREEDOM Act as the sum total of the surveillance reform that was necessary in response to the Snowden disclosures; while liberals, although decrying its inadequacies, will take the view that some reform is better than no reform. In the process, Congress will then accomplish nothing when it comes to (1) reform of oversight surveillance; (2) reform of the FISA Amendments Act; or (3) any effort to circumscribe the scope of collection under Executive Order 12,333. Instead, “surveillance reform” will amount to relatively modest changes to arguably the least invasive of the government’s surveillance authorities. And on topics unrelated to surveillance, it’s hard to see any better outlook for meaningful progress (whatever that is), absent some fundamental shift in the relationship between congressional Republicans and the White House.

So if we are to believe Vladek's argument, libertairan-leaning Republicans are simply striking a political pose when they offer amendments to annual defense spending bills to reign in NSA surveillance, as Justin Amash of Michigan did in 2013 with liberal Democrat John Conyers or as Tom Massie of Kentucky did with liberal Democrats Zoe Lofgren of California and my former boss, Rush Holt of New Jersey in June 2014. If that were true, why did the pro-Surveillance State House Republican and Democratic leadership work so hard to try to defeat those amendments? Becaue they knew none of the supporters–on either side–were engaged in a political stunt. It seems Vladek has a hard time believing that Members like Amash and Massie have core political values that they actually act on in the legislative process. I have no trouble believing it, because I worked with both men and their staffs on this very issue while I was on the Hill.

I also think that given the power of metadata to unmask the private lives, interests, and relationships of U.S. citizens when it is collected en mass by the federal government, it's disingenuous to describe Sec. 215 of the PATRIOT Act as the “least invasive” of the government's surveillance authorities. Ending the indiscriminate bulk collection of that data has rightly been the focus of privacy and civil liberties advocates inside and outside of government since Edward Snowden first revealed the abuses of the Sec. 215 program in 2013. The saving grace at the moment is the June 2015 expiration date for those authorities, and the very real political vice is now creates for Surveillance State proponents. In this fight, time is on the side reform advocates. May they use it well.

 

 

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A Change of Seasons and Careers

October 24th marks my final day as senior policy advisor to Rep. Rush Holt of New Jersey’s 12th Congressional District. When I joined his staff during the first week of August 2004, my first crisis as his communications director was fielding calls about then-Governor Jim McGreevey’s coming-out-turned-resignation. As Rush was in Israel at the time, I was very grateful to be able to tell journalists that I just couldn’t reach him because of the time zone differential. It was a memorable start to a more than 10 year run in the belly of the beast that is the United States House of Representatives.

In the history of the United States Congress, he is the only Member ever to hire a national security whistleblower (at least according to my friends at the Project on Government Oversight and the Office of the House Historian, who I consulted on the question a couple of years back). I will be forever grateful that he gave me a chance to return to government service, and even more for his effort to over turn the Surveillance State. The House–and the American people–are losing one of the greatest champions of the Fourth Amendment in modern history. It is my sincere hope that the other members of the progressive-libertarian House bipartisan alliance that this summer produced the first legislative victory for pro-liberty forces will pick up where he left off.

I will miss the House and its rhythms. Having spent literally one-fifth of my life on the Capitol campus, it will be an adjustment–but I’m hardly disappearing from public life. I’ll have more to say about that on or about November 3…and a lot more to say, on a daily basis, after that.

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