Lawmakers Use Terrorist Alert to Ratchet Up Calls for FISA Reforms

Sen. Richard Blumenthal (D-CT)
©2013 Richard A. Bloom
Stacy Kaper
Aug. 7, 2013, 12:24 p.m.

Law­makers’ con­cerns about Amer­ic­ans’ pri­vacy, in par­tic­u­lar the Na­tion­al Se­cur­ity Agency’s do­mest­ic sur­veil­lance pro­grams, have not dampened over re­cess.

In fact, some law­makers are mak­ing the ar­gu­ment that the ramped-up state of na­tion­al se­cur­ity that has promp­ted em­bassy clos­ures across North Africa and the Middle East amid an al-Qaida ter­ror­ist alert only el­ev­ates the need to strengthen Amer­ic­ans’ trust in U.S. coun­terter­ror­ism tac­tics.

“It is very im­port­ant to em­phas­ize that the latest se­cur­ity alert and threat warn­ing re­mind us how crit­ic­al the work of our in­tel­li­gence and coun­terter­ror­ism people and agen­cies is to our na­tion,” Sen. Richard Blu­menth­al, D-Conn., said in an in­ter­view. “It de­mands and de­serves the re­spect and trust of the Amer­ic­an people, which is why we need my re­form pro­pos­als to pre­serve, re­in­force, and bol­ster the trust and cred­ib­il­ity of those in­sti­tu­tions.”

He ad­ded, “Most es­pe­cially the FISA Court. “¦ It’s an an­om­aly right now be­cause it’s a black box.”

Blu­menth­al is slated to give a ma­jor policy ad­dress on FISA court re­form Thursday at Har­vard Law School, ar­guing for the need to bet­ter bal­ance Amer­ic­ans’ pri­vacy while main­tain­ing strong na­tion­al se­cur­ity pro­vi­sions. The FISA courts gov­ern re­quests for sur­veil­lance war­rants against sus­pec­ted for­eign-in­tel­li­gence agents in­side the U.S. 

He is push­ing for two bills he in­tro­duced with Sens. Ron Wyden, D-Ore., and Tom Ud­all, D-N.M., just be­fore Con­gress ad­journed last week that would provide a spe­cial ad­voc­ate to the FISA courts to ar­gue for Amer­ic­ans’ right to pri­vacy and an­oth­er to change the FISA judge se­lec­tion pro­cess to force great­er di­versity of view­points and back­grounds.

It is un­clear which if any re­forms will be­come law, but policy ana­lysts agree that mo­mentum is grow­ing in Con­gress to ad­dress the scope of the FISA court.

Last month, Rep. Justin Amash, R-Mich., sent a wake-up call to the ad­min­is­tra­tion and NSA de­fend­ers when he came just a hand­ful of votes shy of suc­ceed­ing on a meas­ure that would have stopped the NSA’s blanket col­lec­tion of tele­phone re­cords of Amer­ic­ans not un­der sus­pi­cion of ter­ror­ism ties.

An even strong NSA de­fend­er, Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein, D-Cal­if., has sug­ges­ted re­du­cing how much so-called metadata the NSA re­tains.

“It’s very likely we’ll see some re­form,” said Steven Bucci, a dir­ect­or of for­eign policy stud­ies with the Her­it­age Found­a­tion, who noted that law­makers’ ques­tions and con­cerns ap­pear to be in­tensi­fy­ing. “Very clearly there is a crit­ic­al mass of le­gis­lat­ors and cit­izens who dis­agree with people like me who think this a good bal­ance of pri­vacy and se­cur­ity.”

Mi­chael O’Han­lon, a seni­or fel­low with the Brook­ings In­sti­tu­tion, said that “the nat­ur­al com­prom­ise hasn’t yet sur­faced,” but law­makers ap­pear in­tent on some re­form.

“I’d pre­dict that Con­gress will want to do something more than simply re­gister its con­cerns and com­plaints,” he said. “There will be on­go­ing vig­or­ous dis­cus­sion.”

Blu­menth­al told Na­tion­al Journ­al Daily that he sees con­sti­tu­tion­al freedoms in jeop­ardy, which he said is even more crit­ic­al in the face of the latest ter­ror­ism alert.

“The core mes­sage will be that we can do both — pre­serve liberty and pri­vacy, and safe­guard na­tion­al se­cur­ity,” he said, pre­view­ing his Har­vard ad­dress. “The chal­lenge is to strike bal­ance.”

Blu­menth­al is con­tinu­ing to push to de­clas­si­fy the courts’ opin­ions be­cause they in ef­fect cre­ate law.

“The FISA court is un­known to many Amer­ic­ans. But it ex­er­cises vast in­vis­ible power,” he said. “The court makes law, but right now it’s secret law, and I think there is a point of con­sensus here that the law at the very least should be made pub­lic, and that is one of the points I’m go­ing to be stress­ing.”

Blu­menth­al said that voters have un­answered ques­tions about the gov­ern­ment’s sur­veil­lance pro­grams.

“I see no pro­spect of the is­sue dis­sip­at­ing either in im­port­ance or pub­lic con­cern,” he said. “I don’t see the is­sue go­ing away dur­ing the re­cess. In fact, when I go around the state of Con­necti­c­ut, a lot of folks are talk­ing about the sur­veil­lance, and the good as well as the bad.”

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