Law­mak­ers turn back in sup­port of ter­ror­ist sur­veil­lance

Civil lib­er­tar­i­ans lose lat­est de­bate

The Washington Times Weekly - - Politics - BY STEPHEN DINAN

With the ter­ror­ist-in­spired Or­lando shoot­ing fresh in their minds, House law­mak­ers re­versed course last week and voted to up­hold the gov­ern­ment’s abil­ity to snoop through its data when it be­lieves Amer­i­can cit­i­zens are in­volved in ter­ror­ism — sug­gest­ing the post-Snow­den wari­ness of the NSA has dis­si­pated.

The re­cent vote marked a de­feat for civil lib­er­tar­i­ans, who in 2014 and 2015 won show­downs on the House floor, but whose sup­port has dis­si­pated as ter­ror­ist at­tacks in the U.S. and Europe have re­shaped the de­bate.

The fight is over snoop­ing pro­grams tar­get­ing for­eign­ers’ com­mu­ni­ca­tions un­der Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act, but which also end up snar­ing Amer­i­cans’ emails and phone calls. In­tel­li­gence agen­cies claim the right to go through that data when they are in­ves­ti­gat­ing ter­ror­ism and say it’s crit­i­cal to pre­vent­ing plots or learn­ing about the con­tours of at­tacks, such as the one in Or­lando, as they hap­pen.

Civil lib­er­tar­i­ans ar­gue that the data shouldn’t be col­lected in the first place and say if agents are go­ing to peer into it, they should get a war­rant be­fore look­ing at Amer­i­cans’ data un­der Sec­tion 702.

They won that fight on the House floor in 2014, gar­ner­ing 293 votes — a veto-proof ma­jor­ity — in fa­vor of re­quir­ing a war­rant. They won again in 2015, al­beit a di­min­ished tally of 255 votes in fa­vor. But last week the votes in sup­port dropped be­low 200, los­ing to the in­tel­li­gence back­ers in a show­down, 222-198.

“Congress should not aban­don the Con­sti­tu­tion in the face of ter­ror­ism,” said Rep. Thomas Massie, the Ken­tucky Repub­li­can who has forced the fight each of the past three years. “Un­for­tu­nately, pro­po­nents of war­rant­less sur­veil­lance mis­char­ac­ter­ized our leg­is­la­tion and its bear­ing on the in­ves­ti­ga­tion in Or­lando.”

Dur­ing the floor de­bate last week, Rep. Chris Ste­wart, Utah Repub­li­can and a mem­ber of the House Per­ma­nent Se­lect Com­mit­tee on In­tel­li­gence, said that had Mr. Massie’s plan been in ef­fect, agents couldn’t have run the name of Ma­teen or his wife through their data­bases, de­priv­ing in­ves­ti­ga­tors of Sec­tion 702 data.

“I want to pro­tect our pri­vacy and our con­sti­tu­tional rights. But ob­jec­tions to in­tel­li­gence op­er­a­tions must be based on facts and not ru­mors or mis­un­der­stand­ings,” Mr. Ste­wart said. “Lim­it­ing ac­cess to crit­i­cal law en­force­ment tools to stop these plots would di­rectly put Amer­i­cans in dan­ger.”

The gov­ern­ment’s snoop­ing has come un­der stricter scru­tiny since for­mer con­trac­tor Ed­ward Snow­den shocked vot­ers by re­veal­ing the ex­tent of the Na­tional Se­cu­rity Agency’s bulk data col­lec­tion un­der FISA and the Pa­triot Act. One pro­gram that drew the most at­ten­tion in­volved the NSA col­lect­ing the meta­data — the times, du­ra­tions and num­bers in­volved — in most Amer­i­cans’ phone calls.

Congress last year passed a bill to of­fi­cially can­cel the NSA’s meta­data pro­gram, re­quir­ing in­ves­ti­ga­tors to in­stead make re­quests of the phone com­pa­nies ev­ery time they have a spe­cific ter­ror­ist in­ves­ti­ga­tion to pur­sue.

But the NSA still col­lects data on for­eign­ers and, it says, picks up data on Amer­i­cans on the pe­riph­ery of that.

Mr. Massie and Rep. Zoe Lof­gren, Cal­i­for­nia Demo­crat, who have led civil lib­er­ties ef­forts in Congress, said that col­lect­ing the data when it in­volves Amer­i­cans — and, even more, look­ing at it in in­ves­ti­ga­tions — vi­o­lates the Fourth Amend­ment.

Their amend­ment would have re­quired in­ves­ti­ga­tors to get war­rants to ac­cess the data. It also would have pro­hib­ited the gov­ern­ment from re­quir­ing tech com­pa­nies to in­stall back­door ac­cess for gov­ern­ment agen­cies to de­feat en­cryp­tion.

The two sides dis­agreed over the ef­fects of the amend­ment. In­tel­li­gence com­mu­nity sup­port­ers said the way the lan­guage was drawn could have pre­vented agents from ac­cess­ing the data even with a war­rant.

“You re­ally have to be a lawyer to be able to com­pre­hend this, but in fact ac­cord­ing to the leg­isla­tive text they’ve drawn up, there is not an ex­cep­tion pro­vided for get­ting a war­rant,” said one con­gres­sional aide who worked against the amend­ment.

The aide said clas­si­fied brief­ings have been held for House mem­bers to be­come fa­mil­iar with the ex­tent of the gov­ern­ment pro­grams and their use in pre­vent­ing ter­ror­ist at­tacks. Some 50 law­mak­ers have signed up for brief­ings.

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