A legal challenge to the National Security Agency’s spy-on-Americans program pending at the U.S. Court of Appeals in Washington, D.C., got some unexpected input from Congress this week when members approved a new intelligence apparatus funding plan for 2015.
And one congressman let slip that in the bill, for the first time ever, was congressional authority for the acquisition, retention and dissemination of Americans’ private communications.
Larry Klayman of FreedomWatch, the attorney who won a determination from a judge that the NSA program likely is unconstitutional, noticed immediately. He asked the appeals court to consider the new information in its deliberations.
The Intelligence Reauthorization Bill of 2015 is now headed to President Obama’s desk for his signature.
WND reporte a last-minute attempt by Rep. Justin Amash, R-Mich., to defeat it because of the authorization for the government to access private communications without a warrant or a court order.
Amash called it “one of the most egregious sections of law I’ve encountered during my time as a representative.”
He said the looming law “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.
Klayman said in his submission to the appeals court: “This new bill, which will soon be headed to President Obama’s desk for his signature, provides, according to Congressman Justin Amash, ‘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 NSA’s unbridled and unconstitutional surveillance of Americans has been expanded rather than contracted, and the court should respectfully take judicial notice of this fact in issuing its opinion,” Klayman said.
“It is thus even more important now that this court address the conduct of the defendants. It is clear that if left unchecked the government defendants will continue and even expand upon their unconstitutional surveillance programs,” he wrote.
Amash said the congressional plan “for the first time statutorily authorizes spying on U.S. citizens without [a] legal process.”
Klayman noted that under federal court precedent, a court “may take judicial notice at any stage of the proceeding,” even on appeal.
Amash had warned his colleagues that the new bill allows the NSA to access Americans’ communications without a court order and then pass the information along to law enforcement for criminal investigations.
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, using social media to try to derail the effort, spread his concerns 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.
WND recently reported Klayman’s challenge to the NSA was getting support from two privacy-rights heavyweights, the American Civil Liberties Union and the Electronic Frontier Foundation.
The groups filed a friend-of-the-court brief in support of the district court ruling.
“The call records collected by the government are not just metadata – they are intimate portraits of the lives of millions of Americans,” the brief states.
The data, it says, “reveals political affiliation, religious practices and peoples’ most intimate associations.”
“It reveals who calls a suicide prevention line and who calls their elected official; who calls the local tea-party office and who calls Planned Parenthood.”
The brief says “the relevant fact for whether an expectation of privacy exists is that the comprehensive telephone records the government collects – not just the records of a few calls over a few days but all of a person’s calls over many years – reveals highly personal information about the person and her life.”
The brief cites a study of volunteers in which analysts, using metadata over a short period of time, were able to identify who was considering an abortion, who had a heart condition, who had multiple sclerosis and who owned which brand name of handgun.
Klayman sued the NSA over the collection of telephone metadata from Verizon customers that was detailed in documents released by intelligence-document leaker Edward Snowden. In December 2013, U.S. District Judge Richard Leon issued a preliminary ruling that the program was likely unconstitutional, and the case is currently on appeal before the U.S. Court of Appeals for the District of Columbia Circuit.
President Obama and Attorney General Eric Holder also are defendants in the case.
