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Feinstein’s deception

November 3, 2013

Congress enacted an affordable health care bill that's making a lot of people sick, requiring them to pay more for their insurance. It enacted a stimulus bill that put a wet blanket on the economy, and now it's considering a bill to "reform" the snoopery of the National Security Agency by increasing the agency's surveillance power.

The Senate Intelligence Committee pulled this bait-and-switch maneuver last week, claiming to restrain domestic spying with legislation that actually gives legal cover for the constitutionally dubious collection of telephone calls, emails and metadata from millions of Americans. The bill "prohibits" metadata collection "unless" certain procedures are followed. Orders for collection can only be effective for 90 days, but can be extended as many times as the agency wants. The spies must cross their hearts and hope to die if they look at the private Facebook snapshots of celebrities or read the emails of an ex-wife. No gossips allowed.

Sen. Dianne Feinstein, the California Democrat who heads the intelligence panel and sometimes sounds skeptical of intelligence abuses, devised this defense of the spying enterprise. "This program helps 'connect the dots,' the main failure of our intelligence before 9/11," she argued in an op-ed essay in USA Today. Had the NSA been recording everyone's telephone calls 12 years ago, she says, the hijackers would have been caught.

Perhaps, but probably not. Domestic surveillance was abundant in April, yet Islamic extremists set off a bomb at the Boston Marathon, killing three and injuring 264 spectators. Mass surveillance is no guarantee of safety.

Sen. Mark Udall, Colorado Democrat, actually opposes the domestic spy program. "The NSA's ongoing, invasive surveillance of Americans' private information," he says, "does not respect our constitutional values and needs fundamental reform — not incidental changes."

He's joined by a key Republican in the House, Rep. F. James Sensenbrenner Jr. of Wisconsin, who proposes legislation to eliminate the bulk collection of emails and metadata, clarifying the Patriot Act provision that intelligence agencies cite to justify their snooping. The technology giants AOL, Apple, Facebook, Google, Microsoft and Yahoo joined Friday in backing this restraint. The companies have faced the wrath of customers upset that the firms have been colluding with the spy agencies to hand over private communications under court orders.

The meaning and intent of the Fourth Amendment is straightforward; namely, that the government can only read the "papers" of a particular person if there is probable cause to believe an offense has been committed, and must have a warrant. Mr. Sensenbrenner's measure is the wise and honest way to compel government agencies into line with their constitutional duties.

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By Jim Sensenbrenner

Published on November 2, 2013

It is impossible to forget the attacks of Sept. 11, 2001. And it is not easy to forget what followed: fear, anger and an upwelling of patriotism. Throughout our nation's history, we've fought in wars both at home and abroad, but until that day, most Americans felt invincible from an attack from the outside world.

Following 9-11, the United States felt an unfamiliar vulnerability, but we also felt more unified than ever.

Congress knew it had to act to enhance the tools the intelligence community needed to identify and track terrorists, but we never forgot what makes our country great: freedoms and liberties unlike anywhere else in the world. I led a bicameral group of legislators that came together and passed the USA Patriot Act with strong bipartisan support.

President Ronald Reagan said, "trust but verify." After 9-11, with the country at risk and poised to enter its most intensive conflict since the Vietnam War, Congress extended the administration broader powers to help protect the American people. But the National Security Agency abused that trust.

It ignored restrictions painstakingly crafted by lawmakers and assumed a plenary authority never imagined by Congress. Worse, the NSA has cloaked its operations behind such a thick cloud of secrecy that, even if our trust was restored, Congress and the American people would lack the ability to verify it.

Our constitutional democracy was built to be accountable to the people. That principle can never be compromised.

Earlier this year, Americans were rightly outraged to learn that the NSA is collecting in bulk the phone records of nearly every American. More recently, the media has revealed additional classified information that has added to our concerns.

Since the revelation that the NSA is collecting the details of Americans' phone calls on an unprecedented scale, we have learned 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 lied to courts and Congress. This is not the America our founders envisioned.

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.

On Oct. 31, the Senate Intelligence Committee voted to give the NSA the authority to collect private data on innocent Americans. In an 11-4 vote, Sen. Dianne Feinstein (D-Calif.) presided over the first congressional vote in our country's history to allow unrestrained spying on the American people.

I am committed to a different approach.

On Oct. 29, Senate Judiciary Committee Chairman Patrick Leahy and I came together to introduce the USA Freedom Act. The bill has co-sponsors in the Senate covering the political spectrum, and nearly 90 co-sponsors in the House — almost an even split between Republicans and Democrats.

It also has been endorsed by groups ranging from the National Rifle Association to the American Civil Liberties Union and has the support of many of the tech giants, including AOL, Apple, Facebook, Google, Microsoft and Yahoo.

The USA Freedom Act restores Americans' privacy rights by ending the government's dragnet collection of phone records under Section 215 of the USA Patriot Act and requires greater oversight, transparency and accountability with respect to surveillance authorities.

The bill also provides more safeguards against warrantless surveillance under the FISA Amendments Act and includes significant privacy and oversight provisions, creates a special advocate to focus on the protection of privacy rights before the FISA Court and requires more detailed public reporting.

In short, the USA Freedom Act ensures the law is properly interpreted, past abuses are not repeated and American liberties are protected. And over the coming weeks and months, as more revelations are brought to light and public outrage grows, I will be working to push this important legislation through the House Judiciary Committee and onto the House floor.

There, members can cast their vote to restore trust and accountability to our intelligence community.

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Jim Sensenbrenner was the chief congressional architect of the USA Patriot Act, the sweeping anti-terrorism law that passed after the attacks in 2001 and gave broad new surveillance power to the federal government. He has been a fierce defender of his work.

So give Sensenbrenner credit. A dozen years later, the Wisconsin congressman is now leading an admirable fight to end abuses of the law by the National Security Agency and other government offices.

A bill he introduced last week along with Democratic Sen. Patrick Leahy of Vermont would take some of the wind out of the NSA's data vacuum, increase transparency of the Foreign Intelligence Surveillance Court and create an independent advocate to argue cases before the court on behalf of the public.

The legislation has bipartisan support in both house of Congress and also from an interesting array of strange bedfellows that includes both the National Rifle Association and the American Civil Liberties Union.

We urge Congress to give this legislation careful consideration; it heads in the right direction.

"We have to make a balance between security and civil liberties," Sensenbrenner said recently. "And the reason the intelligence community has gotten itself into such trouble is they apparently do not see why civil liberties have got to be protected."

In an interview last week with The Washington Post, Sensenbrenner said that if Congress had known what the NSA planned to do, the Patriot Act would not have passed — and he wouldn't have supported it.

"What the NSA has done, with the concurrence of both the Bush and Obama administrations, is completely forgotten about the guarantees of civil liberties that those of us who helped write the Patriot Act in 2001 and the reauthorization in 2005 and 2006 had written the law to prevent from happening," he said.

Discontent with the NSA has been building for months after revelations in June by former government contractor Edward Snowden. We now know that the NSA monitored the phone calls of the heads of state of U.S. allies for years, including German Chancellor Angela Merkel and that the NSA sucked up tens of millions of calls in France, Spain and many other countries.

The agency appears to have improperly captured data from thousands of U.S. phone numbers and misrepresented its actions before the secret spy court. Just last week came the allegation that the agency also had tapped the fiber-optic cables that connected Google's and Yahoo's overseas servers and sucked out huge amounts of data.

"We do not provide any government, including the U.S. government, with access to our systems," David Drummond, Google' chief legal officer, said in a statement after that story broke. "We are outraged at the lengths to which the government seems to have gone to intercept data from our private fiber networks, and it underscores the need for urgent reform."

And it's not clear that such activity was all that helpful. The NSA and its supporters says that it is, but when pressed at a recent Senate hearing, Gen. Keith Alexander, the agency's director, testified that only a handful of "attacks thwarted" had any connection to the United States.

Stopping any terror plot saves lives. Preventing terrorism has to be a top priority for the federal government, and to do that the U.S. needs a robust intelligence network. Intelligence failures were part of the reason the government was unable to prevent the Sept. 11 attacks.

But does the NSA really need to vacuum up tens of millions of phone calls, especially if those phones belong to U.S. citizens? We doubt it. And we also doubt there would be such a groundswell to rein in the NSA but for the disclosures by Snowden, who now is in exile in Russia. Time will whether Snowden is really more hero than traitor, but his actions have led to an overdue national conversation on intelligence and privacy.

The Sensenbrenner/Leahy legislation would put a stop to the bulk collection of telephone records and force the NSA to only go after foreign suspects who are targets of terror investigations. It requires the government to filter for and throw out information about Americans that is collected by accident. It creates a public advocate to promote privacy interests before the FISA court and makes the court's work more transparent.

The Obama administration has argued in the past that bulk data collection is permitted by Section 215 of the Patriot Act. Not so, says Sensenbrenner, but the new legislation would make certain of that. The bill also would force the government to get a court order to search for the communications of Americans in data that is scooped up abroad.

Sensenbrenner's bill is in stark contrast to one approved by the Senate Intelligence Committee last week. That bill, championed by Sen. Dianne Feinstein (D-Calif.), the committee chairwoman, would bless the NSA's domestic spying while offering the fig leaf of stronger privacy protections for Americans. No thanks.

America needs a strong intelligence system, but it doesn't need to know that Angela Merkel just ordered solyankafor dinner. And it should not be randomly invading the privacy of millions of U.S. citizens.

Protect the country. Protect privacy. We can do both.

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The Case for NSA Reform

October 29, 2013

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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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