The House is divided over almost everything. But FISA Court reform might be able to unite it.

October 1, 2013

Rep. Chris Van Hollen (D-Md.), who is co-sponsoring a FISA Court reform bill with Rep. Jim Jordan (R-Ohio). (Melina Mara/The Washington Post)

While the government remains shut down because Congress can't agree to keep it funded, a Democrat and a Republican are asking their colleagues to support legislation to bring more transparency to the process for approving NSA surveillance programs.

Rep. Chris Van Hollen (D-Md.) and Jim Jordan (R-Ohio) sent a letter to their colleagues Tuesday asking them to join in co-sponsoring companion legislation to the FISA Court Reform Act (S.1467) introduced in the upper chamber by Sen. Richard Blumenthal (D-Conn.) this summer.

Their legislation would create an Office of the Constitutional Advocate led by a citizen's advocate appointed by the judicial branch who would argue for civil liberties in the FISA Court process. It was also incorporated into the bipartisan proposal 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," explained Van Hollen. "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 individual's rights are being adequately protected." Similarly, Jordan argued that an "adversarial" approach with checks and balances was an appropriate reform approach for the FISA Court consistent with the "American system."

The constitutional advocate

In theory, the advocate would analyze all requests before the notoriously secret court and provide assistance to communications companies on request. But FISA judges would have the discretion to exclude the advocate from some cases. The advocate would also have the ability to appeal decisions made by the FISA Court to the FISA Court of Review, which would be required to decide on every appeal by the advocate. The Office of the Constitutional Advocate would also be required to make annual reports to Congress on its activities and proposals for legislation to improve the effectiveness of the FISA system.

This would clearly be a change from the current setup in the FISA Court, but it might not be enough to materially change the outcomes of the process. Former NSA chief Michael Hayden, one of the architects of current spying programs, recently called this particular type of reform a "cosmetic" change that would "make people feel better" but might not result in any actual changes to programs. And since the court itself complained in a since-declassified order that the NSA mislead it repeatedly about the extent and nature of surveillance, changes at that level might not make a difference.

Jordan disagreed with Hayden's assessment of the advocate approach, saying "he can have his opinion, but the way we structured the legislation was not purely symbolic." Jordan also indicated that he was looking at a broader array of legislative responses to privacy concerns raised by the  Edward Snowden leaks.

Asked whether he would support a broader approach similar to the one proposed by Wyden, Paul, Blumenthal  and Udall in the Senate, Van Hollen said he would "certainly look" at that kind of bill. But he said he was focused on taking it one step at a time. "This a very important piece of the overall issue and it signals important bipartisan cooperation in the House on this issue," he said.

Van Hollen believes it's more important to control who has access to data than to regulate how it's collected. "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 added.

The legislation Van Hollen and Jordan are co-sponsoring would also require the Attorney General to declassify or summarize significant FISA Court decisions. That would fulfill a request some congressional civil liberties watchdogs including Wyden and Udall have been making since long before the Snowden leaks.

Bipartisan support

Van Hollen and Jordan's bill is not the only legislative proposal to rein in the surveillance state. In July, an amendment offered by Michigan  Reps. Justin Amash (R) and John Conyers Jr. (D) that would have defunded the NSA's practice of collecting domestic call records. It attracted support from both sides of the aisle with 94 Republican votes (including Jordan's) along with 111 Democratic votes — despite opposition by leadership on both sides and the White House. Its success shows that there's interest from members of both parties in changing the status quo, even if it's unpopular with leadership.

As the ranking minority member on the House Budget Committee and a former chairman of the Democratic Congressional Campaign Committee, Van Hollen is often touted as a rising star in his party by the media. It's possible that his support of this FISA Court transparency initiative might be a signal that feelings on the Hill are changing.

Andrea Peterson covers technology policy for The Washington Post, with an emphasis on cybersecurity, consumer privacy, transparency, surveillance and open government.
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