Feinstein: Let Supreme Court Decide if NSA Surveillance Is Constitutional

WASHINGTON, DC - JUNE 06: Chairman and Vice Chairman of the U.S. Senate Select Committee on Intelligence, Sen. Dianne Feinstein (D-CA) (L) and U.S. Sen. Saxby Chambliss (R-GA) (R), speak to members of the media about the National Security Agency (NSA) collevting phone records June 6, 2013 on Capitol Hill in Washington, DC. According to reports, the NSA has collected phone data, under a provision of the Patriot Act, of Verizon customers in teh U.S.
National Journal
Dustin Volz and Sara Sorcher
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Dustin Volz and Sara Sorcher
Dec. 17, 2013, 11:58 a.m.

A fed­er­al judge’s rul­ing that the Na­tion­al Se­cur­ity Agency’s sur­veil­lance pro­grams are likely un­con­sti­tu­tion­al sent shock waves through Con­gress, which re­mains di­vided over how much — or wheth­er — to cur­tail the NSA’s data col­lec­tion.

As some mem­bers con­cerned about safe­guard­ing civil liber­ties seized Monday’s opin­ion as a sign of pro­gress, Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein, D-Cal­if., said the Su­preme Court — not Con­gress — should de­cide wheth­er the sweep­ing sur­veil­lance is con­sti­tu­tion­al.

“My hope is that the Su­preme Court will take this case,” Fein­stein told re­port­ers Tues­day, one day after U.S. Dis­trict Court Judge Richard Le­on de­scribed the gov­ern­ment’s abil­ity to ana­lyze per­son­al com­mu­nic­a­tions as “al­most Or­wellian” and likely a breach of the Fourth Amend­ment — es­pe­cially since the gov­ern­ment failed to demon­strate that it hampers ter­ror­ist activ­ity.

Fein­stein’s com­mit­tee, which helps over­see the pro­gram, has been op­er­at­ing un­der the as­sump­tion the pro­gram is con­sti­tu­tion­al. Now, it’s time for an­oth­er look, she said, some three dec­ades after a leg­al pre­ced­ent was set in a 1979 Su­preme Court case that up­held the FBI’s col­lec­tion of phone re­cords in crim­in­al in­vest­ig­a­tions. “We don’t want to do what’s un­con­sti­tu­tion­al,” Fein­stein said. “Those of us that sup­port the pro­gram sup­port it be­cause we be­lieve it’s one tool among oth­ers that helps keep the na­tion safe.”

The 1979 de­cision, Smith v. Mary­land, was made in a com­pletely dif­fer­ent en­vir­on­ment when it comes to threats fa­cing the coun­try, Fein­stein said. “There wasn’t ter­ror­ism. 9/11 ob­vi­ously hadn’t happened. A num­ber of oth­er at­tacks and at­temp­ted at­tacks hadn’t happened, let alone the enorm­ous spiral­ing of ter­ror­ism at­tacks around the world — an 89 per­cent in­crease in deaths from ter­ror­ism in 2012 than in 2011,” Fein­stein said.

Still, now that the sur­veil­lance pro­grams have be­come in­tensely con­tro­ver­sial, she said the high court should settle the is­sue “once and for all.”

Since former NSA con­tract­or Ed­ward Snowden began leak­ing in­form­a­tion about the gov­ern­ment’s sweep­ing sur­veil­lance pro­grams to the me­dia earli­er this year, meas­ures to cur­tail — or, al­tern­at­ively, co­di­fy — parts of the pro­gram have been swirl­ing on Cap­it­ol Hill. Fein­stein is push­ing her own re­form ef­forts, which crit­ics con­tend do little to re­form the NSA bey­ond some trans­par­ency checks, and in­stead serves to co­di­fy many ex­ist­ing sur­veil­lance pro­grams.

She has com­pet­i­tion: Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy, D-Vt., is push­ing a bill along with In­tel­li­gence Com­mit­tee mem­ber Ron Wyden, D-Ore., that would re­strict col­lec­tion of metadata (where the calls ori­gin­ate and which phone picks up, and the dates and times of calls); ap­point a spe­cial ad­voc­ate to over­see the secret For­eign In­tel­li­gence Sur­veil­lance Court; and re­quire the NSA to be more forth­com­ing about its sur­veil­lance activ­it­ies.

The bill mir­rors the House’s Free­dom Act, in­tro­duced by Rep. Jim Sensen­bren­ner, R-Wis. Since the Snowden leaks, Re­pub­lic­ans and Demo­crats have united on the is­sue, but ma­jor moves to de­fund the pro­gram re­spons­ible for phone-call metadata col­lec­tion have failed, al­beit by nar­row mar­gins.

Now, Le­on’s opin­ion has the po­ten­tial to un­der­cut Fein­stein’s own re­form ef­forts and fur­ther strengthen sup­port for the Free­dom Act, which has 115 co­spon­sors in the House. Le­on’s rul­ing is a “big wakeup call for those who back the status quo,” Wyden told re­port­ers. “That a ma­jor fed­er­al judge de­scribed these prac­tices as ‘Or­wellian’ is not typ­ic­al.”¦ You’ve got to change the laws.”

House Ju­di­ciary Com­mit­tee rank­ing mem­ber John Con­yers, D-Mich., prais­ing the court rul­ing, says Con­gress must “in­tensi­fy its ex­am­in­a­tion of the NSA’s tele­phone metadata pro­gram and oth­er sur­veil­lance pro­grams like it” as a res­ult of it. He’s call­ing for more “le­gis­lat­ive hear­ings aimed at cur­ing their con­sti­tu­tion­al de­fects.”

Though re­form ad­voc­ates are cham­pi­on­ing Le­on’s rul­ing, there’s no guar­an­tee it would hold as the case con­tin­ues. Le­on’s rul­ing is a break from those of at least 15 fed­er­al dis­trict court judges who have sat on or cur­rently sit on the FISA Court and reau­thor­ized the pro­gram, Fein­stein said. And just last month, Fein­stein noted, a judge from Cali­for­nia’s South­ern Dis­trict said the NSA data-col­lec­tion pro­gram was con­sti­tu­tion­al, sup­port­ing the FBI’s use of phone in­form­a­tion provided by the NSA in the case of Bas­aaly Moal­in, who was charged with con­spir­acy and provid­ing ma­ter­i­al sup­port to ter­ror­ist group al-Shabaab.

Sur­veil­lance re­form may in the end come from both Con­gress and the courts — not to men­tion the White House, which is also look­ing to make its own re­forms. There’s room for both to in­vest­ig­ate the is­sue and com­ple­ment each oth­er, Sen­ate Armed Ser­vices Com­mit­tee Chair­man Carl Lev­in, D-Mich., said. “We should look at the policy im­plic­a­tions, but the courts will de­cide the con­sti­tu­tion­al­ity.”

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