The Washington PostDemocracy Dies in Darkness

Reform of NSA surveillance is probably inevitable

So the latest effort to reform and curtail the secret NSA surveillance programs — a bipartisan proposal to restrict the NSA gathering of private data only to cases linked to ongoing investigations — failed yesterday in the House by a vote of 217-205.

But the fight will continue.

Here’s the latest: Dem Rep. Adam Schiff of California — one of the lawmakers leading the push for NSA reform — plans to introduce a new proposal that would deal with one of the worst problems with the programs: The fact that the Foreign Intelligence Surveillance Court only hears from the government when deciding whether to authorize surveillance.

Schiff’s proposal will require the Privacy and Civil Liberties Board — an agency within the Executive Branch that is supposed to monitor the balance between anti-terror policies and civil liberties — to create a pool of attorneys with experience in Fourth Amendment or national security law to argue the side of the public when the government requests a surveillance warrant. Under the proposal, the FISA court would be required to appoint a lawyer to act as a kind of “public advocate” for cases that would have broad constitutional implications.

“What we have in mind is to use the Privacy and Civil Liberties board to generate a pool of attorneys, in consultation with the Justice Department, that will be cleared and can provide a contrary view in significant FISA court cases,” Schiff told me today. “The court will have the benefit of hearing contrary views and contrary case law.”

“These attorneys that would have the same access to classified material and same right of appeal as would the government’s attorneys,” Schiff continued. He noted that the proposal was still being drafted, and key details — such as how to define the cases that would require this step, and how to ensure that the FISA court follows this directive — are still being worked out.

“There has to be a mechanism to ensure the presentation of contrary views,” Schiff continued. “If it is entirely left to the FISA court there won’t be a lot of public confidence in it.”

Civil libertarians are worried about having an advocate argue the case before the FISA court in the event the proceedings are kept secret, because without transparency, they say, we still can’t know whether the legal arguments were sound. But there are plenty of other proposals afoot that would bring transparency, too.

Indeed — whatever the chances of Schiff’s proposal — what is striking is the myriad of different angles from which lawmakers are now trying to chip away at this once seemingly impregnable NSA surveillance monolith. There is the proposal to require the FISA court to declassify key opinions authorizing surveillance, which is backed by at least a dozen Senators, including (ostensibly) by some Dem leaders. There is another proposal to require Senate confirmation of FISA court judges. Senator Richard Blumenthal has also suggested several other ideas designed to bring transparency to the FISA court proceeding and provide for outside groups to weigh in before the court authorizes the government’s request.

These proposals are, in a sense, calling the bluffs of political leaders. Obama and Dem leaders say they view concerns about the secrecy shrouding the FISA opinions as legit — okay, so how about supporting the declassification of them? And Schiff’s proposal — should it gain traction — could put Congressional leaders in the position of clarifying whether they view it as problematic that the FISA court is only getting input from the government before making its decisions.

Before yesterday’s vote, it was fair to be pessimistic about the prospects of any of these proposals. But the bipartisan nature of the support for the proposal defeated yesterday suggests reasons for optimism. As Adam Serwer put it: If anything, the closeness of the vote reaffirms their view that both public opinion and political momentum are on their side.”

Reform of NSA surveillance is probably inevitable, but it of course remains to be seen whether the push for change will put any dent in the programs themselves — as opposed to the process governing them — given the broad establishment support they continue to enjoy.