The Case for NSA Reform
By Sen. Patrick Leahy and Rep. Jim Sensenbrenner
Published on October 29, 2013
In the days and weeks following Sept. 11, 2001, we were the primary authors of the USA PATRIOT Act — legislation that responded to those attacks by enhancing the government’s ability to gather information to prevent terrorism. Some checks and balances that were proposed then were included in the final bill; others were not. The PATRIOT Act has been much debated these past 12 years, and we have not always been on the same side of those debates. But whatever our differences may have been in the past, we strongly agree that the dragnet collection of millions of Americans’ phone records every day — whether they have any connection at all to terrorism — goes far beyond what Congress envisioned or intended to authorize. More important, we agree it must stop.
Over the past five months, we have seen a slow trickle of additional disclosures that have only added to our concerns. Since the revelation that the National Security Agency is collecting the details of Americans’ phone calls on an unprecedented scale, it has come out that the government searches the content of huge troves of emails, collects in bulk the address books from email accounts and social networking sites, at least temporarily collected geolocation data from our cellphones, committed thousands of privacy violations and made substantial misrepresentations to courts and Congress.
Not only do many of these programs raise serious legal questions, they have come at a high cost to Americans’ privacy rights, business interests and standing in the international community. It is time for a new approach.
On Tuesday we will introduce bicameral, bipartisan legislation that will put an end to the National Security Agency’s indiscriminate collection of personal information. Our proposal, the USA FREEDOM Act, provides stronger privacy safeguards with respect to a range of government surveillance programs.
While the USA FREEDOM Act ends the dragnet collection of telephone records, it preserves the intelligence community’s ability to gather information in a more focused way, as was the original intent of the PATRIOT Act. Our bill also ensures that this program will not simply be restarted under other legal authorities, and includes new oversight, auditing and public reporting requirements. No longer will the government be able to employ a carte-blanche approach to records collection or enact secret laws by covertly reinterpreting congressional intent. And to further promote privacy interests, our legislation establishes a special advocate to provide a counterweight to the surveillance interests in the FISA Court’s closed-door proceedings.
Let us be clear: We do not underestimate the threats that our country faces, and we agree that Congress must equip the intelligence community with the necessary and appropriate tools to keep us safe. But Congress did not enact FISA and the PATRIOT Act to give the government boundless surveillance powers that could sweep in the data of countless innocent Americans. If all of our phone records are relevant to counterterrorism investigations, what else could be?
The intelligence community has failed to justify its expansive use of these laws. It is simply not accurate to say that the bulk collection of phone records has prevented dozens of terrorist plots. The most senior NSA officials have acknowledged as much in congressional testimony. We also know that the FISA court has admonished the government for making a series of substantial misrepresentations to the court regarding these programs. As a result, the intelligence community now faces a trust deficit with the American public that compromises its ability to do its job. It is not enough to just make minor tweaks around the edges. It is time for real, substantive reform.
We are two veteran lawmakers who believe now is the time for that reform and for a meaningful discussion about protecting privacy and national security in the 21st century. We are not alone — we have heard from Americans across the country who rightfully question the need for these intrusive programs and we are joined by lawmakers in both chambers from across the political spectrum.
We both proudly serve on the House and Senate Judiciary Committees, which have led the way in these important discussions for decades and will continue to do so in the coming months with public hearings and open debate. We hope other lawmakers will join us in our legislative efforts to ensure that such abuses are never repeated and that no false trade-off between freedom and security is allowed to be decided secretly, behind closed doors, ever again.
Sen. Patrick Leahy (D-Vt.) is chairman of the Senate Judiciary Committee. Rep. Jim Sensenbrenner (R-Wis.) is chairman of the House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations.
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