Leahy, Sanders, Welch respond to NSA data collecting

Rep. Peter Welch, Sen. Bernie Sanders and Sen. Patrick Leahy got together Monday to talk about the farm bill passed through the house in June. VTD Photo/Taylor Dobbs

Rep. Peter Welch, Sen. Bernie Sanders and Sen. Patrick Leahy speaking about the farm bill in June 2012. Photo by Taylor Dobbs/VTDigger

All three members of Vermont’s congressional delegation were quick to respond to a growing furor over leaks that show the National Security Agency has been amassing large amounts of data on American citizens.

• Sen. Patrick Leahy, D-Vt., resurrected one of his previous attempts at introducing more transparency to NSA programs.

• Sen. Bernie Sanders, I-Vt., called the program “Orwellian” and demanded that the government have probable cause before collecting such data.

• Rep. Peter Welch, D-Vt., called for congressional oversight of the PRISM, the NSA program that allows the data collection.

The programs that are now being criticized drew their authority from two laws — the Patriot Act and the Foreign Intelligence Surveillance Act (FISA) Amendments Act — that Congress passed, raising questions about its own culpability. The Vermont delegation is taking different approaches to addressing the problem.

Leahy joined Sens. Jeff Merkley, D-Ore., and Mike Lee, R-Utah, and several other lawmakers Tuesday to introduce a bill that would require the Foreign Intelligence Surveillance Court, a secret court that authorizes surveillance requests, to declassify major legal opinions. Those disclosures would include the decisions that authorized the collection of metadata on telephone records and online information from tech companies.

Leahy backed a similar measure last year when the FISA Amendments Act of 2008 was reauthorized, but the amendment died in the Senate. The bill allows the U.S. Attorney General to withhold opinions that would endanger national security if made public.

Leahy issued the following statement after the bill’s introduction: “For years, I have pressed for information about the business records program authorized by the Patriot Act to be declassified. I am proud to join in this bipartisan legislative effort to increase openness and transparency so that we can shed further light on the business records program authorized by this law.”

The Senate president pro-tem is also seeking to use the leaks to drum up support for another of his digital privacy initiatives — an update to the decades-old Electronic Communications Privacy Act that would require the government to get a warrant before accessing emails or documents stored in the cloud.

In a statement released last week, Leahy called more generally for “re-examining legal authorities in the Patriot Act that could authorize broad government surveillance.”

Congressional oversight

Sanders, who lambasted last week’s revelations as “Orwellian,” is calling on Congress to amend the Patriot Act to make the government prove probable cause before collecting data.

He is quoted in a Politico story expressing surprise at how far the Obama administration ran with the Patriot Act provisions.

“I never ever expected that under any definition of that legislation that it would mean the phone calls of millions and millions of Americans — virtually none of whom the government has any reason to believe is involved in terrorism — would be checked by the United States government.”

Welch said one of the most damning revelations accompanying the leaks was the degree to which the public has been kept in the dark.

“Congress doesn’t get briefed and when it does get briefed it has to maintain secrecy. If Congress has to take a pledge of secrecy, then we are not able to have discussions with the people we represent about this government program.”

Welch, who said he didn’t know about the PRISM program prior to leaks, called attempts to ascertain how much Congress knew about the programs prior to leaks “kind of a red herring,” because the briefings are often given on the condition of secrecy.

Welch said he thinks a large portion of the responsibility for following up on the leaks falls in the lap of the judicial branch.

“The courts are ultimately going to have to play a significant role. The question of whether you’ve crossed the line into violating constitutional rights — this is a judicial decision. What Congress should do is more carefully draft the privacy protections to get the balance right.”

But he does think Congress has an “investigatory responsibility” to hold oversight hearings on the PRISM program to get a better grasp on its scope and whether or not there are firm enough safeguards in place. As part of its investigation, Congress should also look closely at the access that low-level staff with security clearances have to records, Welch said.

While Welch made it clear he thinks the public has a right to know about the programs, he stopped short of commending Edward Snowden, the source of the leaks — “you can’t condone people violating the law.”

Voting records

A review of Sanders’ and Welch’s voting records reveals an unbroken string of “nays” on both pieces of legislation and their subsequent reauthorizations. Welch said he opposed the Patriot Act from the beginning because he feared “it gave too free a hand to the surveillance apparatus.”

Leahy voted for the original Patriot Act in 2001, and he has since voted in favor of several temporary extensions of it. According to his spokesperson, David Carle, those votes were “a matter of biding time” so the senator could propose substantial changes to the law.

Leahy has indeed left a paper trail of attempts — some successful, others not — at attaching Fourth Amendment protections to the Patriot Act and the FISA Amendments Act. When those efforts were rebuked, Leahy withdrew his support for the legislation. In 2006, he voted against the USA Patriot Improvement and Reauthorization Act of 2005 and in 2011, he voted against the extension of the Patriot Act until June 2015. Leahy also voted against the FISA Amendments Act of 2008 and it’s reauthorization in 2012.

Legal basis

According to Washington Post reports, the NSA is mining data on emails and social media communications from major tech companies, among them Apple, Google and Facebook, through a program called PRISM. Obama administration officials have cited the FISA Amendment Acts as the legal grounds for the program.

And, according to The Guardian, it’s also collecting the call records of U.S. citizens from major telecommunication companies — Verizon, At&T, and Sprint Nextel — as authorized by Section 215 of the Patriot Act.

The Guardian has also reported that through a third program called “Boundless Informant,” the NSA has amassed 97 billion pieces of information from computer networks, three billion of which originated in the U.S., all over the course of a single month.

Alicia Freese

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