UPDATED: On June 2, a group of national security experts organized by TCP urged the Senate to reject an amendment proposed by Senate Majority Leader Mitch McConnell (R-Ky.) to weaken the special advocate provisions in the USA Freedom Act. As approved by the House, the legislation (H.R. 2048) would require the secretive Foreign Intelligence Surveillance Court to appoint an advocate from a panel of security-cleared lawyers to advise the court in cases involving novel or significant interpretations of law, including offering input on privacy and civil liberties concerns when asked to do so. If the court elected not to appoint a special advocate in certain cases, under the House-approved bill, it would be required to explain its reasons in writing.
The McConnell amendment would have removed the mandate for the appointed lawyer to advocate for privacy and civil liberties, restricted the information to which the advocate would have access, and removed the need for the court to explain its decision not to appoint one.
“This amendment is clearly intended to gut the already limited authority of a special advocate, thereby keeping the American people in the dark about the operation and decisions of the FISA court, which in the past has allowed the NSA to amass the phone records of millions of Americans. As Judge Sack recently noted in the Second Circuit decision finding the NSA phone records program illegal, having an advocate at the FISA court would improve the decision-making of the court and allow the public to have greater confidence in its rulings,” TCP senior counsel Rita Siemion said in a press release. The Senate rejected the amendment on a vote of 42 to 56.
After rejecting two additional damaging amendments, the Senate passed the USA Freedom Act on a vote of 67 to 32. President Obama is expected to quickly sign it.
ORIGINAL POST: In a rare Sunday session, the U.S. Senate decided on May 31 to proceed with debate on the USA Freedom Act, legislation aimed at reforming the NSA’s bulk telephone records program and providing greater transparency in the federal government’s surveillance programs.
“The Senate’s decision to move forward with the USA Freedom Act, which would reform the NSA’s bulk telephone records program, begins the process of restoring some of the fundamental rights surrendered in the rush to improve counterterrorism capabilities in the aftermath of 9/11,” said Rita Siemion, TCP senior counsel, in a press release.
“The Senate should reject the harmful and unnecessary amendments proposed by Majority Leader McConnell – especially those designed to keep the American people in the dark about the Foreign Intelligence Surveillance Court – and send the bill to the president’s desk without any additional delays and without weakening the bill,” she said.
After the Senate voted 77 to 17 to advance the USA Freedom Act, Senate Majority Leader Mitch McConnell proposed four amendments aimed at weakening the legislation, using a procedural maneuver intended to block efforts by other senators to offer any additional amendments. Chief sponsors of the USA Freedom Act have indicated the House will not support a watered-down version of the bill.
But, Congress should not think they will be done with surveillance reform once the USA Freedom Act, Siemion warned. She called on Congress to close the “backdoor search loophole” in the Foreign Intelligence Surveillance Act, which allows for warrantless spying on US persons, and must address overly broad surveillance conducted under a range of other authorities. Last month, a coalition of technology companies and advocacy organizations, including TCP, called on Congress to pass legislation that would require the National Security Agency to obtain permission from a court before examining communications of U.S. persons “incidentally collected” under Section 702 of the Foreign Intelligence Surveillance Act.
Siemion said that Congress should also ensure that a special advocate with a strong mandate to advance privacy and civil liberties will be present at the FISA court. The Constitution Project also released a report in May, 2014 urging the appointment of a special advocate with an unconditional right to participate any case in which the FISC is asked to approve certain broad surveillance authorizations, and setting forth requirements for making the advocate effective.