[ED NOTE: An abridged version of this article was republished by the Ventura County Star on 8/17/2013.]
On Aug. 1, my Congressional Representative, Julia Brownley (D-CA-26), forwarded a letter to me in response to a query as to why she was amongst those responsible for the recent narrow defeat (205 - 217) of Amash-Conyers, a bi-partisan amendment to the Department of Defense Appropriations bill that would have brought an abrupt halt to the NSA's warrantless blanket collection of Americans' phone records.
The response did not address the actual substance of Amash-Conyers. Instead, her complaints about the measure were procedural, as she explained...
While there's some legitimacy in Brownley's objection to an arbitrary 15-minute time limit for debate on such an important matter, the issue is not as "complex" as the first-term Congresswoman characterizes it. The one paragraph amendment, and its implications --- unlike the PATRIOT Act, FISA and the opaque secret interpretations of those laws she was effectively voting to keep in place, as is --- were fairly straightforward, in fact...
"All we want to do is make the one word, 'relevant', become applicable," explained Rep. John Conyers (D-MI) on The Bill Press Show. The Congressman was getting to the heart of the short Amendment that he co-sponsored with fellow Michigander Rep. Justin Amash, a conservative Republican.
There are poignant examples in which Congressional haste in the area of civil liberties can, indeed, be regarded as both reckless and irresponsible. That was certainly the case when, on Oct. 26, 2001, George W. Bush signed into law, the original USA/PATRIOT Act. The PATRIOT Act was 131 pages in length. It was divided into 1,016 different sections. The Act contained sweeping changes to a number of existing laws, including those contained in the Foreign Intelligence Surveillance Act of 1978 (FISA), the Electronic Communications Privacy Act of 1986 (ECPA), the Money Laundering Control Act of 1986 and Bank Secrecy Act (BSA), as well as the Immigration and Nationality Act.
The U.S. House passed the PATRIOT Act on Oct. 24, 2001 --- one day after it was introduced by Rep. James Sensenbrenner, Jr. (R-WI). The U.S. Senate passed the PATRIOT Act one day later.
When confronted by Michael Moore during the filming of the documentary, Fahrenheit 9/11 (see video below), multiple members of Congress conceded that they hadn't even read the Act before signing it. Conyers, who voted against the sweeping legislation, quipped: "We don't read most of the bills."
If we were now dealing with a wholesale repeal of that recklessly-enacted encroachment on our civil liberties, the expression of a need for more time for deliberation from Brownley might be more understandable. It's difficult to see how Brownley --- or any other member of Congress who is not also a member of the intelligence committees --- can make fully informed decisions on those issues given that they are not allowed access to relevant FISA court rulings.
But, unlike the original PATRIOT Act, Amash-Conyers did not entail sweeping changes to a number of federal statutes. Instead of 131 pages and 1,016 sections, Amash-Conyers [PDF] contained a one paragraph revision of Section 215 of the PATRIOT Act. It reads [emphasis added]:
As observed by Sensenbrenner, the PATRIOT Act's original sponsor, during the floor debate on Amash-Conyers, that simple, straightforward language is consistent with the original intent of the PATRIOT Act. That fact alone, coming from a Republican like Sensenbrenner who drafted much of the original legislation, ought to have been enough to convince even the the most skeptical members that this change to the law was not complex enough to require months of debate and discussion via "regular order".
In fact, even before Amash-Conyers was introduced, Sensenbrenner sent a well-publicized June 6, 2013 letter [PDF] to Attorney General Eric Holder in which he referred to an FBI application "for a top secret order to collect the phone records of virtually every call made by millions of Verizon customers" as being inconsistent with the Act as he originally drafted it, and as Congress originally approved it.
"How," Sensenbrenner asked, "could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?"
In a fact sheet circulated in support of his and Conyers' proposed amendment, Amash described it as simply a means to eliminate the "NSA’s blanket collection of Americans’ telephone records." It would, he argued, prevent the government from capturing and retaining "a pool of metadata on every phone call of every American."
The Amendment would not have prevented the government from obtaining "business records and other 'tangible things' that are actually related [aka "pertinent," "relevant"] to an authorized counterterrorism investigation," according to the fact-sheet. And, because FISA Court orders only apply to purely domestic communications, the Amendment to Section 215 of the PATRIOT Act would not impair the NSA's ability to engage in the blanket capture of international and international/domestic communications.
As explained by William Binney, a high-ranking, 40-year NSA veteran-turned-whistleblower, in a declaration that was filed in Jewell v. NSA --- a case brought by the Electronic Frontier Foundation (EFF) which is, among other things, challenging the constitutionality of the NSA's warrantless domestic surveillance --- if the NSA desired to capture only international or international/domestic communications, it could have done so by installing its intercept equipment at any or all of the "more than two dozen...sites on the U.S. coasts where fiber-optic cables come ashore...Instead the NSA chose to put its intercept equipment at key junction points and probably throughout the nation, thereby giving itself access to purely domestic communications."
It would thus be a simple matter for the NSA to remove its equipment from the domestic communications centers and to, instead, install them "where the fiber-optic cables come ashore" --- assuming it has not already installed its equipment in those locations as well.
From the perspective of simple math, the idea that the NSA needs to violate the Fourth Amendment privacy rights of some 300 million Americans via the collection and storage of metadata pertaining to every domestic phone call is so patently absurd that it makes the GOP's potential suppression of millions of otherwise lawful votes via polling place Photo ID restrictions --- in order to prevent what Loyola Law Prof. Justin Levitt described as nine (9) cases of "possible" in-person voter fraud out of more than 400 million votes cast --- seem reasonable by comparison.
In defending his proposed Amendment, Amash noted:
All of these violations of our Constitutional rights --- the very civil liberties that Brownley says she has "worked vigorously to protect" --- are necessary to capture one taxi driver who sent money to a Somali group? Really?
While there can be no doubt that it was unreasonable for the House leadership to impose a fifteen minute time constraint on a debate as important as this, Brownley and the other 216 members of the House who voted against Amash-Conyers, cannot escape the fact that theirs was a vote to continue the status quo with respect to a single section out of some 1,016 sections of a PATRIOT Act which had been recklessly and hastily enacted to begin with.
More time is almost certainly needed to responsibly consider whether to roll back or perhaps repeal the PATRIOT Act and the 2008 Amendments to FISA altogether. But, should a measure like Amash-Conyers come up again for a vote --- even with just 15 minutes of debate --- hopefully, the explanation above will give Brownley the information and courage she needs to appreciate that there is no validity in the suggestion that we must permit the NSA's wholesale violations of our constitutional right to privacy to continue --- constitutional violations that, as revealed by a recent Reuters account, has entailed uses of that blanket collection for reasons that have nothing to do with terrorism.
Despite NSA assurances to the contrary, it appears that the DEA has used the data collected without a warrant in order to initiate criminal prosecutions in the so-called "War on Drugs." According to the report, DEA agents then "recreate the investigative trail in order to conceal the origins of the evidence, not only from defense lawyers, but also from prosecutors or judges" thereby evading the core constitutional protection that requires a warrant issued only upon a showing of probable cause to obtain evidence that is admissible in a criminal proceeding. This not only entails constitutional violations but a fraud upon our courts.
Blanket collection of our metadata, unabated for months or even years on end, while Brownley and her colleagues mull over the complexities of what she describes as "privacy, rapidly advancing technology, and threats to our national security," is still unconstitutional and violative of the very civil liberties she claims to have "worked vigorously to protect". Hopefully, next time, she'll put the vigorous protection of those rights first, before, purposefully or not, voting to defend an indefensible status quo.
UPDATE 8/9/13: According to Democracy Now!, information obtained by the NSA's warrantless domestic surveillance is not only being secretly used by the DEA to initiate criminal drug prosecutions but is being sent to the IRS "to help in their investigations of Americans. Like at the DEA, IRS agents are then instructed to cover up how they obtained the tips."
Video segment from Fahrenheit 9/11, containing concessions that members of Congress did not bother to read the PATRIOT Act before approving it, follows below...