Do you ever get the feeling that the hearts of some folks preaching #Resistance aren’t really in it, when it comes to the NSA ?
Last Tuesday night two senior Democrats, Speaker Nancy Pelosi and Intelligence Committee Chair Adam Schiff, blocked bipartisan efforts to restrict NSA surveillance for the second time in three years. Seems they’re not troubled about the massive illegality of the NSA’s data collection in itself, about the “FBI backdoor loophole“, “parallel construction“, or any of the heinous practices of Trump’s NSA. Maybe they’re just marking time in the hope that it’ll be Biden’s NSA soon, and all will once more be well. Maybe they really believe, as legislators who were in Congress in 2001, that these powers are permanently appropriate to an executive in the now almost two-decade-old War on Terror.
What happened this week was this: Rep. Justin Amash (R-MI), a long-time foe of NSA over-collection, teamed up with the equally passionate Zoe Lofgren (D-CA), to offer an amendment to an appropriations bill that would have prohibited reverse targeting. That’s when NSA targets a foreign national (who may have links to terrorism, or simply may know something of use to the intelligence services), knowing that the foreign national has contacts in the US whose communications they would like to rummage through. Ordinarily, the Fourth Amendment would apply, and they would need a warrant based on probable cause of involvement in a crime before seizing the communications of a US citizen.* But for intelligence purposes, the NSA can seize the communications of a targeted foreign national, and their contacts, and their contacts’ contacts (so-called “2-hop collection”). With this practice, NSA evades warrant requirements and seizes the communications of a US national and anyone that US national communicates with, down to their local pizza joint. Then, the FBI is allowed to search those communications for evidence of domestic crimes. They can do this, under current statute, so long as the sole purpose of the targeting is not to obtain the US citizen’s communications, which is a pretty easy bar to meet. The Amash-Lofgren amendment would have changed this to a “substantial purpose“, making it a much wider prohibition.
Then look what happens. Pelosi (rated D on our scorecard) and Schiff (rated F on our scorecard) swing into action, and Schiff circulates a “Dear Colleague” letter, describing the Amash-Lofgren amendment as follows:
“Makes significant policy changes to collection activities under section 702 of the Foreign Intelligence Surveillance Act (FISA) meant to make it more difficult for the National Security Agency (NSA) to acquire internet communications of a foreign intelligence target in communication with someone in the United States. Although the NSA already does not reverse target U.S. persons, the amendment includes a new test for the certification of acquisition that may make FISA collection impracticable.”
Got that? NSA is not in fact reverse-targeting (perish the thought!), but nevertheless, actually prohibiting reverse-targeting would be such a “significant policy change” that it “may make FISA collection [collection under the Foreign Intelligence Surveillance Act] impracticable.” Friends, it looks like we have a Schrodinger’s Amendment here, that can be magically completely ineffectual and completely disastrous at the same exact time.
Now, there were roughly an oodle of amendments to this appropriations bill. There were only two minutes allocated to discuss it. And for the 2019 intake of Congressmembers, this was the first time they ever had an opportunity to vote on this issue. Some of the more prominent new Congressmembers – Alexandria Ocasio-Cortez, Rashida Tlaib, Ilhan Omar and Ayanna Pressley – had already spoken up about the dangers of surveillance, are well informed about it, and voted for the amendment. But for many, the first they had heard about it may have been this scaremongering language from Schiff. Nadler, who assumed the chairmanship of House Judiciary after a contest with Lofgren, and who has often spoken up for civil liberties, stayed mum. It’s hard as a new-minted Congressmember to make trouble for yourself with the Speaker, the Majority Leader, and the chair of a significant committee all at once, and the result was that many new Members joined them in voting the amendment down. Had House Democrats this time been as willing to vote against mass surveillance as they were when they were in the minority in 2017, the amendment would have passed. Schiff’s memo led to more Democrats voting against it than Republicans, including 46 out of 66 Democratic freshmen. The final vote was 175 Yeas to 253 Nays.
Here’s footage of Pelosi and Schiff back in 2017, during the debate on passage of the USA RIGHTS Act, which was introduced as an amendment to an underlying, damaging intelligence bill that eventually passed. The USA RIGHTS Act would have prohibited reverse targeting and systematically reined in the intelligence community. In this debate, rather than argue for the Act’s adoption, first Schiff argued for temporary withdrawal of the underlying intelligence bill, which eventually passed; when that failed, Pelosi, rather than arguing for the Act’s adoption, helped defeat it by introducing a new and toothless amendment that gave Democrats cover to oppose it.
Here at Restore The Fourth, we have tracked votes from 2012 on these issues very closely. We have seen opposition to mass government surveillance grow slowly in Congress in both parties, as the problems with it have become more grave and more public. Pelosi and Schiff are increasingly out of touch with the average position of their caucus on this issue. Fortunately, pro-privacy candidates are well represented in the presidential race, with Sanders, Warren, Gabbard and Booker all posting A+ voting records; but it’s Congress that has the power to constrain what the NSA and FBI are doing with legislation, and they’re just. not. doing. it.
* The Fourth Amendment isn’t actually limited to US citizens, but for the purposes of this discussion, we’re assuming that the foreign national targeted doesn’t already have what are called “substantial voluntary connections” to the US that would permit US courts to recognize their Fourth Amendment rights.
Alex Marthews is National Chair of Restore the Fourth. You can follow him on Twitter @rebelcinder.
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