Despite rhetoric about reining in the National Security Agency, privacy-minded Senators sat on their hands this week as a provision to dramatically expand the agency’s authority to spy on Americans was quietly ushered through Congress.
The new provision gives Congressional approval, for the first time, to spying activities carried out under Executive Order 12333 – a breathtakingly broad authority to conduct foreign surveillance that’s also known to collect enormous amounts of data belonging to Americans.
“Congress codified the status quo, which happens to be an enormous amount of retention and sharing of Americans’ data,” said Mark Jaycox, a legislative analyst with the Electronic Frontier Foundation.
Journalists working with former NSA contractor Edward Snowden last year revealed one program carried out under EO12333 that resulted in the NSA collecting millions of online address books belonging to both foreign nationals and US citizens alike.
Although the executive order is supposed to target only foreign intelligence, it’s crafted in a way to assume that any data collected outside the United States belongs to non-American citizens. Given the nature of the internet, however, a lot of data belonging to Americans traverse the international cables connecting the world wide web and is thus susceptible to being harvested by the NSA.
In July, a former State Department official, John Napier Tye, suggested in the Washington Post that spy activities carried out under this executive order are a greater threat to Americans’ privacy than other, more well-known, spying authorities.
“Based in part on classified facts that I am prohibited by law from publishing,” he wrote, “I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215.”
In light of these revelations, reformers hoped the 113th Congress would assert more oversight of this shadowy executive spy order. What they least expected in this climate was for Congress to use its last week in session to codify into law this sort of spying.
“The intelligence committee is essentially bypassing a public debate,” Jaycox said, pointing out that the provision was sneaked into the bill with less than a few hours notice on Tuesday night.
Hours after the release of the high-profile torture report she oversaw, Sen. Dianne Feinstein (D-Calif.), quietly included the provision into a routine intelligence authorization bill. A short time later, both the amendment and the entire bill passed out of the upper chamber by unanimous consent.
On Wednesday, the House was ready to take up the measure and pass it by unanimous consent as well, until Rep. Justin Amash (R-Mich.) raced to the floor to demand a roll call vote. Calling it “one of the most egregious sections of law” he had ever encountered, he urged his colleagues to vote down the bill.
“Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of US persons’ private communications obtained without legal process such as a court order or a subpoena,” he said in a letter to lawmakers. “Congress never has approved of using executive authority in that way.”
Rep. Amash failed to rally enough support to defeat the bill. It passed 325-100.
Unlike in the House, Senate rules do allow for one lawmaker to derail legislation. Yet outspoken reformers like Sen. Patrick Leahy (D-Vt.), whose NSA reform bill was narrowly defeated by a filibuster last month, and Sen. Rand Paul (R-Ky.), who contributed to that filibuster because he didn’t think the bill was strong enough, failed to lodge any sort of objection.
Supporters of the provision say that by codifying it, Congress was able to put limits on the program. The amendment does include a five-year limit on the retention of any Americans’ communications that are inadvertently scooped up in the intelligence dragnet.
That five-year limit can be waived, however, if the communications comport with a list of criteria deeming it of worthy intelligence value.
Rep. Amash referred to the limits as “exceedingly weak.”
Since the Feinstein provision was folded into the bill with little notice, Mark Jaycox suspected Members of Congress were likely “unaware of what they were actually passing.”
“Just like with the PATRIOT Act,” he said.
