One hundred Republicans and Democrats have found an issue they can agree upon in Congress – the need to rein in the nation’s intelligence gathering community.
So far they have been fighting the good fight and losing with honor. But when the next Congress is seated in 2015, the tide could turn if only because there will be so many new faces confronting those who have been entrenched in power.
Rep. Justin Amash (R-Mich.) did his best Dec. 10 to slam the door shut on a provision of the Intelligence Authorization Act of 2015 that he is afraid will allow the White House to spy on any U.S. citizen without bothering to ask a judge for permission.
The Republican from Grand Rapids, Mich., pushed back against the door that he said was shoved open to an unprecedented degree by the intelligence community, and pleaded for help from fellow believers in Congress to defeat H.R. 4681.
Amash told his Facebook followers he demanded a roll call vote on the legislation when his staff told him about the provision they found most heinous, Sec. 309, which was inserted by the Senate.
“It grants the executive branch virtually unlimited access to the communications of every American,” Amash explained.
The legislation was being rushed to the House floor for a voice vote, which Amash said would have meant it would have been declared “passed” with very few House members present.
Demanding a roll call vote gave Amash and his supporters time to send out a letter pleading for a “no” vote.
Amash admitted it was too little, too late. The legislation was approved and sent to President Obama for his signature.
“With more time to spread the word, we would have stopped this bill, which passed 325-100. Thanks to the 99 other representatives—44 Republicans and 55 Democrats—who voted to protect our rights and uphold the Constitution,” he posted on Facebook.
Patrick G. Eddington, a policy analyst in homeland security and civil liberties for the Cato Institute, told PJ Media this is a fight that every American needs to be watching, if only because the government is certainly watching us.
He said archive documents made public by NSA leaker Edward Snowden show the federal government has been targeting anyone utilizing the free and open software Tor, which is designed to hide and protect a user’s identity.
“Now Sec. 309 language seems to suggest that if you use Apple products such as Facetime or iMessage, or Android products utilizing OpenWhisper’s systems, for example, you can expect the U.S. government to try to retain your data if they ‘reasonably believe’ you’ve been in contact with someone overseas, particularly (but not exclusively) countries of intense interest to NSA such as Pakistan, the GCC states, and other countries in the Middle East and North Africa,” he told PJ Media.
Eddington said Section 309 is problematic on several levels and only underscores why privacy and civil liberties advocates will continue to push for real reforms in intelligence collection.
Still, the leaders of the House and Senate Intelligence committees and the Senate Homeland Security and Government Affairs Committee — Republicans and Democrats — were unanimous in their support of the legislation.
They said Amash and the other 99 missed the point that the legislation puts a limit of five years on the time the data intercepted can be warehoused and studied by intelligence agencies.
A Senate Intelligence Committee spokesman told the National Journal there is nothing in Section 309 that would allow any new method or criteria for intelligence collection.
“The only thing the section does is require new procedures governing the information the [intelligence community] already collects,” the spokesman said. “The purpose of the section is to limit the [intelligence community’s] existing ability to retain information, including U.S. personal information.”
Amash described that as a weak argument.
He conceded the point that Section 309 requires disposal of the communications plucked from Americans’ emails, phone calls, and other electronic communications in five years.
But the White House and its various intelligence agencies already do that, Amash said.
“In exchange for the data retention requirements that the executive already follows, Sec. 309 provides a novel statutory basis for the executive branch’s capture and use of Americans’ private communications,” Amash wrote.
“The Senate inserted the provision into the intelligence reauthorization bill late last night,” he wrote to his fellow House members Dec. 10.
“That is no way for Congress to address the sensitive, private information of our constituents—especially when we are asked to expand our government’s surveillance powers.”
A House Intelligence Committee press release, written in celebration of House passage of the Intelligence Authorization bill, claimed the legislation would “further improve the continuous evaluation of insider threats while safeguarding privacy and civil liberties.”
The ranking member of the House Intelligence Committee, Rep. Dutch Ruppersberger (D-Md.), said the legislation was too important to stop and there were oversight safeguards in place.
“It ensures that our intelligence agencies spend money only on programs Congress is informed of, approves, and can continuously oversee,” he said. “At the same time, it ensures that our intelligence professionals have what they need to keep us and our allies safe.”
Supporters of the legislation also pointed out the package received bipartisan support in the House and Senate and would “modernize, strengthen and improve our nation’s cyber security defenses,” according to a Senate Homeland Security and Government Affairs Committee statement.
“Cybersecurity is one of our nation’s biggest challenges,” said Sen. Tom Carper (D-Del.), the chairman of the committee.
“It is more than clear that the federal government needs to address this 21st century threat with a 21st century response. While our work in this area is far from finished, these bills are an important step in our effort to modernize our nation’s cybersecurity programs and help the public and private sectors work together to tackle cyber threats more effectively in the future.”
This is not the first time Amash has clashed with the U.S. intelligence community.
Amash voted against the U.S. Freedom Act in May 2014, even though he was one of the original co-sponsors of the legislation designed to rein in the CIA, FBI and other acronyms in the intelligence hierarchy.
“It’s shameful that the president of the United States, the chairman of the House Permanent Select Committee on Intelligence, and the leaders of the country’s surveillance agencies refuse to accept consensus reforms that will keep our country safe while upholding the Constitution,” Amash wrote on his Facebook page. “And it mocks our system of government that they worked to gut key provisions of the Freedom Act behind closed doors.”
Amash and his 99 supporters in the House may have struck out the first two times they tried to corral abuses in the way intelligence is gathered from Americans, but they are still at the plate.
And, they could be stronger than ever.
One of Amash’s allies, Rep, Thomas Massie (R-Ky.), is optimistic that surveillance authority reform will be enacted by the next Congress.
Massie voted with Amash to block the intelligence funding legislation Dec. 10. He told the Cato Institute two days later that the way the votes broke down on the Amash amendment, the Massie-Lofgren amendment and the co-sponsor list for the USA Freedom Act in May, it is evident this is not a partisan issue.
He said the labels of “Democrat” and “Republican” don’t matter nearly as much as time served in Congress.
“The folks who have been in Congress a shorter time are more likely to vote for reforms and increasing our civil liberties. I think that is because they are more in tune with their constituents.”
Massie also said he and Amash will have another opportunity to change the nation’s intelligence gathering rules in 2015 because provisions of the Patriot Act are set to expire next year.
“I think a straight up or down vote on the Patriot Act would fail in the next Congress. So they have to include substantive reforms to compel us to vote for the reauthorization,” said Massie.
He is focused on closing loopholes that allow domestic intelligence to be collected and used against U.S. citizens by requiring search warrants and probable cause. Massive also wants to end collection of bulk data from U.S. citizens.
Massie has another priority, too. He wants to stop the government from being allowed to insert “back-door keys” in products that allow the White House to spy on customers of those software companies.
“It’s a civil liberties problem. It hurts the business of these companies. And possibly the most important reason it makes these products defective and less secure,” he said. “If you are selling encryption equipment that has a back door in it, a hacker could find that back door and instantly have access to information from everyone who is using that software.”