Note: Whistleblowers Edward Loomis and J. Kirk Wiebe have signed our letter opposing the current version of the USA FREEDOM Act. Please add your name to our letter to congress.
The ACLU noted in November that approximately 30 bills had been proposed in Congress to reform National Security Agency (NSA) surveillance and Foreign Intelligence Surveillance Court (FISC) processes that authorize such programs. Few provide for the complete restoration of freedoms guaranteed under the U.S. Constitution. The amended Leahy/Sensenbrenner USA Freedom Act actually perpetuates the retroactive “legalization” of unconstitutional activities Congress has permitted since 2006. Speaker Boehner’s favored House Intelligence bill sponsored by Reps. Rogers and Ruppersburger and labeled the Stop Bulk Collection Act also perpetuates the nebulously low standard of “reasonable articulable suspicion” for analyzing metadata of private U.S. citizens. Both bills were drafted by the Intelligence Committees charged with overseeing the operations of the NSA and upholding the U.S. Constitution. For 12 years we were unaware our own government had secretly amassed individual dossiers of metadata on virtually all its citizens, so much so that costly data centers were constructed to store the data for secretive purposes. How are we to trust reform legislation authored by those who failed both their oversight and Constitution protection responsibilities?
With public outcry opposing the present surveillance practice that presumes all U.S. citizens are potential terrorists or accomplices, Congress has an obligation to pass meaningful legislation to reverse the government’s betrayal of our Fourth Amendment privacy protections. With so many competing bills, the sponsors of each bill owe it to the public to consolidate and deconflict the bills and restore the Constitution to its proper place as the quintessential law of the land. The consensus reform bill should allow ample debate time and freely permit amendments during debate, and roll call votes, so citizens know how their elected officials voted.
H.R. 2818, sponsored by Rep. Rush Holt, D-NJ, would be an excellent basis for reform. Its short title – Surveillance State Repeal Act – is no misnomer. H.R. 2818 was introduced the very day the Amash/Conyers amendment to the 2014 House Defense Appropriations bill was narrowly voted down. That amendment would have halted funding of NSA collection of all U.S. citizen phone records but was defeated following just 15 minutes of floor debate. H.R. 2818 extended the reform intended by the Amash/Conyers Defense bill amendment, and as we’ve all learned, complete reform is indeed necessary. It repeals the Patriot Act and almost all provisions of the Foreign Intelligence Surveillance Amendments Act of 2008. There remain only two sections providing for Attorney General semi-annual reports to Congress and certain key definitions.
Importantly, H.R. 2818 also provides for the inclusion of technology Special Masters in an advisory capacity to Foreign Intelligence Surveillance Court (FISC) proceedings; it also:
- clarifies Foreign Intelligence Surveillance Act (FISA) warrants’ electronic surveillance compliance directions;
- strengthens the constitutionality of FISA by specifically imposing the “probable cause” standard for any and all FISC-approved warrants;
- prohibits the Federal Government from imposing requirements on electronic devices and/or software “backdoors” intended to defeat encryption or privacy protection;
- imposes an annual FISA-compliance reporting requirement by the Comptroller General;
- provides an official path for whistleblowers by authorizing Intelligence Community employees or contractors to report violations of law, rule, or regulation; gross mismanagement or waste of funds; abuse of authority; or substantial danger to public health or safety related to programs and activities authorized by FISA; and
- imposes administrative sanctions against Intelligence Community officers or employees who take retaliatory action against employees or contractors who report such wrongs.
Unsurprisingly, Rep. Holt’s bill has not seen the light of day and has been referred to eight committees and five subcommittees where it has languished since July. House officials, led by Speaker Boehner, steadfastly support NSA despite the Agency’s assault on the Constitution, and the lesser reform imposed by the Leahy/Sensenbrenner or Rogers/Ruppersberger bill would be far preferable to House leadership than the comprehensive Holt bill. While the amended USA Freedom Act halts bulk collection of US records beyond two degrees from known or suspected targets, it does nothing to provide continuous, independent technical probes inside NSA to determine whether there are other illegal programs and ensure that any arising in the future are uncovered and reported.
Before new legislation is set in stone, those who claim to be the stewards of the United States and the human rights it represents on the world stage should contemplate an important fact. For fully 60% of its existence, the NSA has operated outside the Constitution. What is needed now is congressional fortitude – the dedication to uphold the Constitution and our rights in the digital age – something all too rare in Washington DC these days. The position our representatives assume on the USA Freedom Act must serve as a wedge issue in congressional elections in November. If no true reform legislation is passed, it’s time for new leadership in Congress and new representatives to fill the ranks of those who oppose serious reform.
Edward Loomis worked as a NSA Cryptologic Computer Scientist for 37 years and Systems Architect contractor there for five additional years. He led the SIGINT Automation Research Center’s development of THINTHREAD, a constitutional processing and analysis tool for Internet data scuttled by NSA 2 months prior to 9-11.
J. Kirk Wiebe worked at NSA for 32 years as a Senior Intelligence Analyst and five years as a private contractor for the Intelligence Community. He is a recipient of NSA’s second highest award, the Meritorious Civilian Service Award and the Meritorious Unit Citation awarded by the Director, CIA.