October 2, 2013

Bill seeks more transparency in NSA surveillance requests

Two lawmakers call for a citizen’s advocate.

The Washington Post

WASHINGTON — Two lawmakers are asking their colleagues to support legislation to bring more transparency to the process used for approving National Security Agency surveillance requests.

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Director of National Intelligence James Clapper testifies on Capitol Hill in Washington on Sept. 26 before the Senate Intelligence Committee hearing on the Foreign Intelligence Surveillance Act and National Security Agency call records. Clapper told lawmakers he's willing to consider limits on surveillance by the National Security Agency.

The Associated Press

Rep. Chris Van Hollen, D-Md., and Jim Jordan, R-Ohio, sent a letter to their colleagues Tuesday asking them to co-sponsor legislation that would overhaul the Foreign Intelligence Surveillance Act court system. The legislation would be a companion bill to legislation introduced by Sen. Richard Blumenthal, D-Conn., over the summer.

Van Hollen and Jordan’s legislation would create an Office of the Constitutional Advocate led by a citizen’s advocate appointed by the Supreme Court. The advocate would argue any civil liberties issues that emerge on NSA surveillance requests before the FISA Court. Such an advocate was also included in proposed legislation introduced by Blumenthal and Sens. Rand Paul, R-Ky., Mark Udall, D-Colo., and Ron Wyden, D-Ore..

“The basic idea behind the bill is that both sides of an argument should be represented before the FISA Court,” Van Hollen said. “We believe the FISA Court should head the position advanced by the intelligence agencies, but they should also hear from a citizen’s advocate whose main purpose is to determine if an individual’s rights are being adequately protected.”

Under the legislation, the advocate would analyze all NSA requests brought before the notoriously secret court and provide assistance to companies that may object to an NSA request. But FISA judges would also have the discretion to exclude the advocate from some cases.

The advocate, however, could appeal decisions to the FISA Court of Review, which would be required to rule on those appeals. The Office of the Constitutional Advocate would also be required to report to Congress every year on its activities and weigh in on proposals to improve the effectiveness of the FISA Court system.

The legislation would clearly be a change from the current setup, but some have questioned whether it would significantly change the outcome.

Former NSA chief Michael Hayden, one of the architects of the current spying programs, recently called similar proposals a “cosmetic” change that would “make people feel better,” but might not result in any actual changes to programs.

Jordan disagreed. “The way we structured the legislation was not purely symbolic,” he said.

It’s more important to control who has access to data than to regulate how it’s collected, Van Hollen said. “I really think that’s the key issue when it comes to protecting civil liberties: What are the standards that apply when people are trying to search the data, and do you have an advocate to protect individual liberties in that process.”

Van Hollen and Jordan’s legislation would also require the attorney general to declassify or summarize significant FISA Court decisions. That would fulfill a request some civil liberties watchdogs have been making since long before Edward Snowden’s leak related to government surveillance programs raised the issue’s profile.

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