When the House of Representatives recently considered an amendment that would have dismantled the NSA’s bulk
phone records collection program, the White House swiftly condemned the measure. But only five years ago, Sen. Barack Obama, D-Ill. was part of a group of legislators
that supported substantial changes to NSA surveillance programs. Here are some of
the proposals the president co-sponsored as a senator.
As a senator, Obama wanted to limit bulk records collection.
Obama co-sponsored a 2007
bill, introduced by Sen. Russ Feingold, D-Wis., that would have required the government
to demonstrate, with “specific
and articulable facts,” that it wanted records related to “a suspected
agent of a foreign power” or the records of people with one degree of
separation from a suspect. The bill died in committee. Following
pressure from the Bush administration, lawmakers had abandoned a
similar 2005 measure, which Obama also supported.
We now know the Obama administration has
sought, and obtained, the phone records belonging to all Verizon
Business Network Services subscribers (and reportedly, Sprint and
AT&T subscribers, as well). Once the NSA has the
database, analysts search through the phone records and look at people with two or
three degrees of separation from suspected terrorists.
The measure Obama supported in 2007 is actually
similar to the House
amendment that the White House condemned earlier this month. That measure,
introduced by Reps. Justin Amash, R-Mich., and John
Conyers, D-Mich., would have ended bulk phone records collection but still allowed the
NSA to collect records related to individual suspects without a
warrant based on probable cause.
The 2007 measure is also similar to
current proposals introduced by Conyers and Sen. Bernie
Sanders, I-Vt.
As
a senator, Obama wanted to require government analysts to get court approval
before accessing incidentally collected American data.
In Feb. 2008, Obama co-sponsored
an amendment, also introduced by Feingold, which would have further limited the
ability of the government to collect any communications
to or from people residing in the U.S.
The measure would have also required
government analysts to segregate
all incidentally collected American communications. If analysts wanted to
access those communications, they would have needed to apply
for individualized surveillance court approval.
The
amendment failed 35-63.
Obama later reversed his position and supported what became the law now known to authorize
the PRISM program. That legislation — the FISA Amendments Act of 2008
— also granted immunity to telecoms that had cooperated with the government on
surveillance.
The law ensured the government would not need a court order to collect
data from foreigners residing outside the United States. According to the Washington Post, analysts are told that
they can compel companies to turn over communications if they are 51 percent
certain the data belongs to foreigners.
Powerpoint
presentation slides published by the Guardian
indicate that when analysts use XKeyscore — the
software
the NSA uses to sift through huge amounts of raw internet data —
they must first justify why they have reason to believe communications are
foreign. Analysts can select from rationales available in dropdown menus and
then read the communications without court or supervisor approval.
Finally, analysts do not need court
approval to look at previously-collected bulk metadata either, even domestic
metadata. Instead, the NSA limits access to incidentally collected American
data according to its own “minimization” procedures. A leaked 2009 document said
that analysts only needed permission from their “shift
coordinators” to access previously-collected phone records. Rep. Stephen Lynch,
D-Mass., has introduced a bill that would require analysts to get special court
approval to search
through telephone metadata.
As
a senator, Obama wanted the executive branch to report to Congress how
many American communications had been swept up during surveillance.
Feingold’s 2008 amendment,
which Obama supported, would have also required the Defense Department and
Justice Department to complete a joint audit of all
incidentally collected American communications and provide the report to
congressional intelligence committees. The amendment failed 35-63.
The Inspector General of the
Intelligence Community told Senators Ron Wyden, D-Ore., and Mark Udall, D-Co.
last year that it would be unfeasible
to estimate how many American communications have been incidentally
collected, and doing so would violate Americans’ privacy rights.
As
a senator, Obama wanted to restrict the use of gag orders related to
surveillance court orders.
Obama co-sponsored at least two measures
that would have made it harder for the government to issue nondisclosure orders
to businesses when compelling them to turn over customer data.
One 2007 bill would have required
the government to demonstrate that disclosure could cause one of six specific
harms: by either endangering someone, causing someone to avoid prosecution,
encouraging the destruction of evidence, intimidating potential witnesses,
interfering with diplomatic relations, or threatening national security. It
would have also required the government to show that the gag order was “narrowly
tailored” to address those specific dangers. Obama also supported a similar
measure in 2005. Neither measure made it out of committee.
The Obama administration has thus far prevented
companies from disclosing information about surveillance requests. Verizon’s
surveillance court order included a gag
order.
Meanwhile, Microsoft
and Google
have filed motions with the Foreign Intelligence Surveillance Court seeking
permission to release aggregate data about directives they’ve received.
Microsoft has said the Justice
Department and the FBI had previously denied its requests to release more
information. The Justice Department has asked for more
time
to consider lifting the gag orders.
As a senator, Obama wanted to give
the accused a chance to challenge government surveillance.
Obama co-sponsored
a 2007 measure that would have required the government to tell
defendants before it used any evidence collected under the
controversial section of the Patriot Act. (That section, known as 215,
has served as the basis for the bulk phone records collection program.) Obama
also supported an identical
measure in 2005.
Both bills would have ensured that defendants
had a chance
to challenge the legalityof
Patriot Act surveillance. The Supreme Court has since held
that plaintiffs
who cannot prove they have been monitored cannot challenge NSA
surveillance programs.
Those particular bills did not
make it out of committee. But another section of the
Foreign Intelligence Surveillance Act requires that the government tell
defendants before it uses evidence collected under that law.
Until recently, federal prosecutors would not
tell defendants what kind of surveillance had been used.
The New York Times reported that in two separate bomb plot prosecutions, the
government resisted efforts to reveal whether its surveillance relied on a traditional
FISA order, or the 2008 law now known to authorize PRISM. As a result, defense
attorneys had been unable to contest the legality of the surveillance. Sen. Dianne
Feinstein, D-Calif., later said that in both cases, the government had relied
on the 2008 law, though prosecutors now dispute
that account.
On July 30, the Justice Department reversed
its position in one bomb plot prosecution. The government
disclosed that it had not gathered any evidence under the 2008 law now known to
authorize sweeping surveillance.
But that’s not the only case in which the
government has refused to detail its surveillance. When San Diego cab driver BasaalySaeedMoalin
was charged with providing material support to terrorists based on surveillance
evidence in Dec. 2010, his attorney, Joshua Dratel, tried
to get the government’s wiretap application to the Foreign Intelligence Surveillance
Court. The government refused, citing national security.
Dratel only learned that the government had used Moalin’s
phone records as the basis for its wiretap application — collected under
Section 215 of the Patriot Act — when FBI Deputy Director Sean Joyce cited
the Moalin case as a success story
for the bulk phone records collection program.
Reuters has also reported that a
U.S. Drug Enforcement Administration unit uses evidence from surveillance to
investigate Americans for drug-related crimes, and then directs
DEA agents to “recreate” the investigations to cover up the original tip, so
defendants won’t know they’ve been monitored.
As
a senator, Obama wanted the attorney general to submit a public report
giving aggregate data about how many people had been targeted for searches.
Under current law, the attorney
general gives congressional intelligence committees a semiannual report with
aggregate data on how many people have been targeted for surveillance. Obama
co-sponsored a 2005 bill that would have made
that report public. The bill didn’t make it out of committee.
Despite requests from Microsoft and Google,
the Justice Department has not yet given companies approval to disclose
aggregate data about surveillance directives.
As
a senator, Obama wanted the government to declassify significant
surveillance court opinions.
Currently, the attorney general
also gives congressional intelligence committees “significant” surveillance court
opinions, decisions and orders and summaries of any significant legal
interpretations. The 2005 bill that Obama co-sponsored would have released
those opinions to the public, allowing redactions for sensitive national
security information.
Before Edward Snowden’s
disclosures, the Obama Justice Department had fought
Freedom of Information Act lawsuits seeking surveillance court opinions. On
July 31, the Director of National Intelligence released a heavily
redacted version of the FISA court’s “primary
order” compelling telecoms to turn over metadata.
In response to a request from
Yahoo, the government also says it is going to declassify
court documents showing how Yahoo challenged a government directive to turn
over user data. The Director of National Intelligence is still reviewing if
there are other surveillance court opinions and other significant documents
that may be released. Meanwhile, there are severalbills in Congress
that would compel the government to release secret surveillance court opinions.
