The House Judiciary Committee's hearing on the government's unconstitutional spying provided the Obama Administration with a marvelous opportunity to answer Congress's questions about abuses of the Foreign Intelligence Surveillance Act and Section 215 of the PATRIOT Act, the laws being used by the
government to order phone companies provide the calling information from
every American's calling information. Representatives from both parties grilled the government's witnesses about the spying, the lack of transparency, the violation of the law, and the violation of the Fourth Amendment. Sadly, the witnesses were caught off guard, unable to answer questions, and hid behind secrecy.
"You've Already Violated the Law"
Many of the representatives were incensed the government believes it has the legal authority to collect every American's calling information without violating the law or the Constitution. A core issue is the government's use of Section 215 of the PATRIOT Act. Section 215 allows the government to obtain "any tangible thing" to be obtained by the government if "relevant" to an authorized national security investigation. In his introduction, Rep. John Conyers spoke plainly of the abuses, noting:
"We never--at any point during this debate--approved the type of unchecked, sweeping surveillance of United States citizens."
Rep. Conyers concluded saying, in his view, the witnesses "already violated the law" by using Section 215 to obtain such an enormous amount of call records.
Rep. Jim Sensenbrenner, one of the authors of Section 215 of the PATRIOT Act, agreed. In the hearing he said the law has "got to be changed," threatening: "You've got to change how you operate 215...or you're not going to have it anymore." Rep. Zoe Lofgren also voiced her concerns demanding reform of Section. Currently, the bills introduced in Congress fail to fix the spying and we encourage members to draft tougher legislation. Throughout the hearing, witnesses were adamant the records were needed to pursue terrorists organizations, and to serve as a type of grand jury subpoena for investigations.
"You're Not Answering My Question"
Section 215, itself, restricts the records that can be obtained to those available with a grand jury subpoena--a legal tool allowing prosecutors to obtain records relevant to criminal investigations. The government has misleadingly suggested that its use of Section 215 is no different than a grand jury subpoena, and witnesses repeated the claim today. But Rep. Jarold Nadler wasn't buying it: he immediately jumped on the fact that grand jury subpoenas are very different in scope than Section 215 orders.
Rep.Nadler pointedly asked James Cole of the Justice Department for any example of a grand jury subpoena, issued at any time in U.S. history, that is remotely similar to collecting every American's calling information. Cole conceded that he could not provide an example. When Rep. Nadler asked him to answer the question in writing after the hearing, Cole hid behind secrecy: he stated he would try to respond, but cited that grand jury proceedings can't be released and are secret.
Where is the Fourth Amendment?
Representatives also tackled the violations of the Fourth Amendment. One of the main reasons the Fourth Amendment was drafted was to protect against "general warrants"--exceedingly broad warrants used by the British to conduct searches with little restriction. Time and time again, Representatives pressed the witnesses to reconcile the dragnet, suspicionless collection of call records by the NSA with the Fourth Amendment.
For example, Rep. Blake Farenthold repeatedly asked why such collection of telephone records is not considered a "general warrant," while Rep. Ted Poe demanded to know if the witnesses think there is a "national security exemption" to the Fourth Amendment. Reps. Spencer Bachus, Raul Labrador, and Jason Chaffetz asked similar key questions regarding the constitutionality of the program.
More Information Needed
The tough questions representatives asked today are a great first step. But more needs to be done. The secret law surrounding the programs must be released. Congress cannot craft legislative solutions without finding out how the government uses, and interprets, the statutes. Congress, and the American public, can't rein in a domestic spying apparatus run wild without knowing the full extent of the NSA's spying program.
It's time for the government to come clean and give the American public the information we need about the programs. That's why EFF and a coalition of over 100 civil liberties groups are pushing for a special investigatory committee to investigate the unconstitutional spying. Join us, and over half-a-million users, to tell Congress to initiate a special investigatory committee, to demand more transparency, and to demand more accountability.
