In Response to the NSA, We Need A New Church Commission and We Need It Now

“Th[e National Security Agency's] capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide.” —Senator Frank Church, 1975

Following on the heels of the Guardian reporting that the NSA is collecting all US call data records of Verizon customers, the Guardian and Washington Post yesterday reported that nine of the biggest Internet companies, including Facebook, Google, Yahoo, and Microsoft, are also working with the government in a vast spying program, where a massive amount of online data flows to the NSA, all in secret.

The revelations not only confirmed what EFF has long alleged, they went even further and honestly, we’re still reeling. EFF will, of course, be continuing its efforts to get this egregious situation addressed by the courts. 

But one thing is clear.  Congress now has a responsibility to the American people to conduct a full, public investigation into the domestic surveillance of Americans by the intelligence communities, whether done directly or in concert with the FBI.  And it then has a duty to make changes in the law to stop the spying and ensure that it does not happen again.

In short, we need a new Church Committee.

In the mid-70s, in response to revelation that the government was engaging in systematic domestic surveillance on domestic targets—including anti-war activists, academics, and government critics like Martin Luther King Jr., John Lennon and Daniel Ellsberg—the distinguished Senator from Montana, Frank Church, convened a Senate investigative committee that ultimately put a stop to large scale domestic spying for decades.

The Church Committee report, which can be read in full here, led to the passage of the Foreign Intelligence Surveillance Act (FISA), setting up the secret FISA court that put strict procedures in place for conducting surveillance for intelligence activities. Most importantly, following a Supreme Court ruling in 1973, FISA required an individualized, probable cause warrant for national security spying, just as the Fourth Amendment requires.

While there is much to criticize in the original FISA, it did rein in the government, and its system of checks and balances remained largely in place until shortly after September 11, 2001, when President George W. Bush first authorized a broad warrantless wiretapping program.  The government decided to illegally bypass the FISA court and started warrantlessly wiretapping the communications, as well as collecting and data-mining the communications records of innocent Americans.

When a portion of the NSA warrantless surveillance was revealed by the New York Times in 2005, there was widespread outrage among the American people. Unfortunately, Congress reacted in the opposite way as the Church Committee once did. Instead of fixing the problems, they institutionalized most of them and swept the rest under the rug.

In 2008, Congress gutted the original balance of FISA with the FISA Amendments Act, which allowed the government to get court orders with less than probable cause that would target groups of people—instead of individuals, like the Constitution requires.  The law also allowed the NSA to collect information on innocent Americans when they are talking to people outside the US who are targeted by the government.

But it gets worse.  EFF and others had long alleged that, despite the rhetoric surrounding the Patriot Act and the FISA Amendments Act, the government was still vacuuming up the records of the purely domestic communications of millions of Americans.  And yesterday, of course, with the Verizon order, we got solid proof..  And it appears that the reach of this vacuum goes much further, into the records of our Internet service providers as well. 

Now it’s not as if these efforts haven’t been challenged.  EFF has been seeking judicial review of the dragnet surveillance, both wiretapping and records collection, since 2006, facing one procedural maneuver after another by the government.  The ACLU brought a strong constitutional challenge to the FISA Amendments Act that was dismissed by the Supreme Court only two months ago for lack of “standing.” The court ruled in a contentious 5-4 decision that because the ACLU couldn’t prove for a “certainty” that their clients were being surveilled, they couldn’t challenge the law.

Well, it turns out, the new revelations prove everything the ACLU was arguing, in addition to confirming all of the allegations in EFF’s warrantless wiretapping case, Jewel v. NSA.

Of course, the evidence has been there all along. Even after the FISA Amendments Act passed, the New York Times reported in 2009 the NSA was still collecting purely domestic communications in a “significant and systematic” way after the original bill passed in 2008. And just last year, the government admitted, the secret FISA court has ruled “on at least one occasion” that the government’s surveillance under the law had violated the Fourth Amendment.

That secret FISA court ruling is still classified, as are the OLC memos that supposedly give the government’s best case that all this purely domestic surveillance is legal. But one has to wonder, if the FISA court “routinely” authorizes the collection of all US call data, what kind of surveillance was the NSA conducting that they couldn’t approve?

Shamefully, Congress has had a chance to add provisions to both the Patriot Act and FISA Amendments Act in the last two years. In 2011, the Obama administration opposed all transparency and accountability amendments to the Patriot Act when key provisions were renewed for another five years. Just six months ago in Decemebr 2012, the administration again opposed all oversight amendments, even those more moderate than the ones he voted for as Senator in 2008.

So here’s your wake up call Congress, and an opportunity to be a hero. We need a Church Committee for a new era. It could be headed by Ron Wyden and Mark Udall, the two Senators who have been trying to warn the American people about the government dangerous interpretation of the Patriot Act for years. Udall said today, he “did everything short of leaking classified information” to stop it.

But someone in Congress needs to step up and fill Frank Church’s shoes.  They are big ones, but EFF stands willing to help. And so, we suspect, will millions of innocent Americans whose privacy has been violated and who are ready to have their constitutional rights back.   

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