Here’s what real reform of the NSA looks like

August 2, 2013

Rep. Rush Holt (D-N.J.) (Photo by Asia Society)

Rep. Rush Holt has long been one of the most outspoken critics of the surveillance state. First elected in 1998 to represent central New Jersey, the Democrat served on the House Permanent Select Committee on Intelligence, which oversees U.S. intelligence agencies, from 2003 until 2011. He is currently seeking the Democratic nomination for U.S. Senate from New Jersey, running against Newark mayor Cory Booker.

Last week, Holt introduced the Surveillance State Repeal Act. A number of members of Congress have offered proposals to rein in domestic surveillance, but Holt's bill may be the most ambitious. It would repeal the 2001 Patriot Act, which the NSA has cited as the legal basis for its phone records surveillance program. It would also repeal the 2008 FISA Amendments Act, the legal foundation for the government's PRISM program. And it would extend whistleblower protections to cover employees of intelligence agencies.

Holt spoke to us from the campaign trail on Thursday. The transcript has been edited for length and clarity.

Timothy B. Lee: How would your legislation be different from other NSA reform proposals?

Rush Holt: This isn't reform. This is repeal. I voted against both of those [the Patriot Act and the FAA] before. And actually against Patriot before multiple times. Those bills were misguided in their specifics, and now seeing what various agencies have done to stretch the language of those bills to cover things that were never intended to be covered makes clear that they've got to go. Even Rep. James Sensenbrenner (R-Wis.) [the author of the Patriot Act] has said it was never intended to be used that way.

Have you been surprised by the revelations that have come out in the last couple of months?

I sat on the House Permanent Select Committee on Intelligence and chaired the Select Intelligence Oversight Panel, which was created at the recommendation of the 9/11 panel, and should be continuing except that Speaker [John] Boehner abolished it when he took office.

So having dealt with the leaders of the intelligence committee, not much surprises me. They're in the business of secrecy and deception. And unfortunately it carries over to their interaction with Congress. One of the things about your article that I particularly liked was that you pointed out that dogged questioning by reporters has shown that the role of these programs in preventing terrorism has been peripheral at best.

I have been off the [Intelligence] committee now for three years, and so I'm not completely up to date about what the intelligence community is saying behind closed doors about how this has kept us safe. But I actually believe that violating the Fourth Amendment keeps us less safe.

When the FISA court allows government functionaries, however well-meaning, to make decisions that should be made by an independent judge about who is worthy of suspicion, who should be collected on, then you end up with a situation where those who surveil and detain are operating on their own hunches. They can easily end up with unchecked wild goose chases or witch hunts.

The idea of the Fourth Amendment is not to get in the way of law enforcement and intelligence, but rather to see that they do a good job by having to prove at each step of the way that they know what they're doing, that they're not off running down hunches and going off on wild goose chases and witch hunts. So I'm not sure what the NSA folks and folks like Clapper have been saying behind closed doors about how effective this stuff is, but I watched it for years, and it is not effective at keeping Americans safer on balance.

Your proposal seems like it would be a pretty dramatic change in U.S. surveillance law.

What led up to the Patriot Act, in 2001, was a very dramatic change in American surveillance law and practice. The practice changed before the law changed. The FISA Amendments Act was brought forward under the law [to provide a legal basis for] activities that were already under way. To say repealing them is a dramatic change in U.S. intelligence law, I would say, well no, it is undoing the dramatic change that occurred in our moment of fear.

The changes made in 2001 were not right. There clearly was a reminder of what most of us already knew: that there are terrorists and would-be terrorists out there who would do Americans harm, and we have to protect against them. But the Patriot Act, with all of its provisions, Patriot and successor reauthorizations that allow sneak and peek searches and allow [the government] to issue administrative subpoenas that should come from a judge, and allow them to surveil people in all sorts of intrusive ways, they were passed because a majority of members of Congress suspected in the days after September 11, 2001, that there were terrorist cells in every city in America. We'd just heard there were hijackers in Florida and Maine and in Newark, and it made it sound as if they were everywhere. That they had infiltrated our society in every state and county. That turns out not to be true. But there was this rampant fear in Congress that that was happening. And there was a real over-reaction.

What can be done to make the intelligence community more transparent and accountable?

Part of the problem is that the NSA has been using these [laws] as excuses for doing a lot of things. And the FISA court has been insufficient in its review. That's why I think they should be repealed. Can the NSA, can the CIA, can other intelligence agencies do things that are not in the national interest? You bet they can. They have from time to time over decades.

Congress has to do a better job of oversight. There's no question that it's made hard when the intelligence agencies obfuscate and cherry-pick what they tell Congress. No one likes to be criticized, and therefore no agency likes Congressional oversight. But many agencies understand that for this government with balance of powers to work, they have to cooperate in the oversight.

You've heard no doubt members of Congress who have served on the Intelligence Committees say they have to play a form of 20 questions with intelligence witnesses. For many of the witnesses, their idea of being straightforward and honest is giving the narrowest possible specific answer to a question, not really providing the information Congress actually needs. They play a little game to see if members of Congress will ask these specific questions, to which they'll give an answer that's relevant. If a member doesn't ask that specific question, the intelligence officials will leave the meeting room smiling to themselves about protecting the secrecy of their agency. It's a game that doesn't serve the oversight process, it's a game that doesn't serve America well.

Your proposal also would extend whistleblower protections to national security cases, right?

Yes, the legislation provides whistleblower protection for people who work in the intelligence agencies. Right now, they have no whistleblower protection comparable to what exists in other agencies. Especially in the [intelligence] agencies we need that. In agencies that are dominated by secrecy and deception, Congress simply won't know and surely the public won't know either what is being done in their name.

If there had been whistleblower protection, I'm quite sure that Snowden would not have done what he did. Yet we could have, as the president has said, a national debate about what needs to be done in spying on Americans and others.

My bill essentially extends to employees of the intelligence community the kinds of protections that exist in other agencies. They would be able to go to Congress or to designated officials like inspectors general without having to fear workplace retribution. Think of the case of Thomas Drake. He uncovered what I think would have to be called waste and perhaps fraud [at the NSA], and he took that up the chain, and he was severely disciplined for it. It hurt him professionally, and as we know, the way the story played out, the court chastised the NSA for the treatment. It just shows that you can't take this up the chain in the agency as a whistleblower and expect fair treatment.

But it wouldn't apply to someone who released information to the public, right?

I think the way I've written it is only internally and to Congress. That does put some responsibility on Congress to see that action is taken if there's illegal behavior, waste, fraud, abuse, or unconstitutional behavior.

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