By Paul Bremmer
A last-minute effort by Rep. Justin Amash, R-Mich., to defeat what he called “one of the most egregious sections of law I’ve encountered during my time as a representative” has failed in Congress.
Amash contends the provision in the Intelligence Authorization Act for fiscal year 2015, which a short time ago was passed 325-100 in the House, “grants the executive branch virtually unlimited access to the communications of every American.”
It was a late amendment to the funding bill that authorizes “the acquisition, retention, and dissemination” of private communicates to which Amash objected.
Cheryl Chumley, author of the revelatory “Police State USA: How Orwell’s Nightmare is Becoming Our Reality,” was dismayed that Amash’s Republican colleagues passed the bill in spite of the congressman’s warnings.
“Shows you the caliber of our representatives in Congress,” Chumley said. “On one hand, Republicans decry the overreach of federal government in general, and the monarch-like tendencies of this administration in specific. … But on the other hand, when it comes time to taking a stand on an issue that impacts Americans across all divides – race, economic, gender – the response is less than interested.”
She added: “The Republican-dominated House should have given Amash’s caveats a good listen. Granting Obama and the executive branch access to all Americans’ communications is uncomfortable at best – downright scary at worst. Think of the fun the IRS under Obama can have now!”
Under the late Senate addition to the bill, the National Security Agency can obtain Americans’ communications without a court order and then pass them to domestic law enforcement for criminal investigations, Amash had warned.
The law amounts to congressional approval of the surveillance power that the executive branch has claimed for some time, critics said.
The Senate inserted the provision into the bill Tuesday night before passing it. When Amash discovered the new amendment, he sent a letter to his House colleagues warning them of the bill’s contents and urging them to reject it.
However, House members simply approved the change on a voice vote.
Amash had used social media to try to derail the effort, moving quickly to contact his colleagues through Facebook:
When I learned that the Intelligence Authorization Act for FY 2015 was being rushed to the floor for a vote – with little debate and only a voice vote expected (i.e., simply declared “passed” with almost nobody in the room) – I asked my legislative staff to quickly review the bill for unusual language. What they discovered is one of the most egregious sections of law I’ve encountered during my time as a representative: It grants the executive branch virtually unlimited access to the communications of every American.
Last night, the Senate passed an amended version of the intelligence reauthorization bill with a new Sec. 309 – one the House never has considered. Sec. 309 authorizes “the acquisition, retention, and dissemination” of nonpublic communications, including those to and from U.S. persons. The section contemplates that those private communications of Americans, obtained without a court order, may be transferred to domestic law enforcement for criminal investigations.
To be clear, Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of U.S. persons’ private communications obtained without legal process such as a court order or a subpoena. The administration currently may conduct such surveillance under a claim of executive authority, such as E.O. 12333. However, Congress never has approved of using executive authority in that way to capture and use Americans’ private telephone records, electronic communications, or cloud data.
Supporters of Sec. 309 claim that the provision actually reins in the executive branch’s power to retain Americans’ private communications. It is true that Sec. 309 includes exceedingly weak limits on the executive’s retention of Americans’ communications. With many exceptions, the provision requires the executive to dispose of Americans’ communications within five years of acquiring them – although, as HPSCI admits, the executive branch already follows procedures along these lines.
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. The Senate inserted the provision into the intelligence reauthorization bill late last night. 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.
Chumley previously has warned of government intrusion.
“Privacy as we know it in America is dead. Drone technology is blossoming, the federal government’s already been tapping into private social media messaging, all in the name of security, the private sector is latching on to emerging technology that puts the likes of audio and video recording devices in store mannequins, and now comes a new – and unknown – entity that’s listening in on cell phone conversations,” she said during an earlier dispute over cell phone monitoring,” she said.
It’s “crucial for Americans to understand that putting the technology genie back in the bottle just isn’t going to happen,” she said. “The best course of action is assume all phone conversations, all social media messaging, and computerized correspondences are being tapped and hacked – because the truth is, they very well could be.”
The NSA already is defending in court it’s spy-on-Americans programs, and lost an initial round when a judge ruled those activities likely are unconstitutional.
The case, brought by attorney Larry Klayman of Freedom Watch, is working its way up the appeals court ladder.
