On July 24 the House of Representatives had a showdown concerning limiting the powers of the National Security Agency (NSA) to collect and store—en masse—the private communications of all Americans. Representatives Justin Amash (R–MI) and John Conyers (D–MI) introduced an amendment to H.R. 2397, the Department of Defense Appropriations Act, which would defund all programs and activities specifically targeting Americans who were not the subjects of an ongoing terrorism investigation.
Over the past few months it has been revealed that the NSA has been collecting and storing the phone calls, emails, and other communications of millions of Americans—all without warrants. As noted by Glenn Greenwald, a journalist with the United Kingdom’s Guardian, the newspaper that originally leaked the NSA domestic spy documents:
Obama and other NSA defenders have repeatedly claimed that ‘nobody’ is listening to Americans’ telephone calls without first obtaining warrants. This is simply false. There is no doubt that some of the communications intercepted by the NSA under this warrantless scheme set forth in FAA’s section 702 include those of US citizens. Indeed, as part of the Fisa court approval process, the NSA submits a separate document, also signed by [Attorney General] Holder, which describes how communications of US persons are collected and what is done with them.
According to Amash’s NSA Amendment Fact Sheet, “The Amash-Conyers amendment ends NSA’s blanket collection of Americans’ telephone records. It does this by requiring the FISA court under Sec. 215 to order the production of records that pertain only to a person under investigation.” The statement continues:
The amendment has three important practical effects. First, it ends the mass surveillance of Americans. The government no longer is authorized under Sec. 215 to hold a pool of metadata on every phone call of every American. Second, the amendment permits the government to continue to acquire business records and other “tangible things” that are actually related to an authorized counterterrorism investigation. The government still has access to this tool under the amendment, but it’s forced to comply with the intent of Congress when it passed Sec. 215. Third, the amendment imposes more robust judicial oversight of NSA’s surveillance. The FISA court will be involved every time NSA searches Americans’ records, and the court will have a substantive, statutory standard to apply to make sure the NSA does not violate Americans’ civil liberties.
Of concern to residents of northeastern Pennsylvania is how their representatives voted on the Amash-Conyers Amendment.
Freshman Democratic Representative Matt Cartwright (PA–17) voted “Aye,” and provided the following statement to the WBIG:
I voted yes on the bipartisan Amash/Conyers amendment that would prevent the National Security Agency (NSA) from collecting the phone records of people in America who aren’t being investigated on terrorism-related charges. The NSA says it has the authority to collect the phone records of everyone in the United States. That this ‘metadata’ doesn’t directly include names is of little comfort to me, since it is easy for people in the intelligence community to piece together a person’s identity based on these records or to use these records to target a person for any number of motivations. If everyone’s phone records are a ‘tangible thing’ for the purposes of a terrorism investigation, then our government sees everyone as a potential suspect. That’s nowhere in the Constitution I swore an oath to defend. I see no legal justification for this program in statute, and I have a hard time understanding how this broad collection of everyone’s data is consistent with our Fourth Amendment right to due process. We’ve seen too many abuses in the past to shrug our shoulders and move on. Enough is enough. It’s time to restore checks and balances and protect our right to privacy.
Republican Representative Lou Barletta (PA–11) was absent during the vote, but House records indicated that he was granted leave for July 24 and 25 because of a family emergency. Barletta did submit comments to the House Clerk’s Office indicating support for the appropriations act and opposition to the Amash-Conyers amendment.
Representative Barletta’s office had the following response to an inquiry by the WBIG:
[Representative Barletta] understands the need to balance privacy concerns with national security interests. Unfortunately, there are people around the world and in this country that seek to do us harm. To disarm ourselves of an effective weapon in the War on Terror is shortsighted and a threat to public safety. There must be vigilance to see that individual rights are not infringed, but we also must fulfill government’s primary responsibility: to protect our citizens from harm.
Many of Barletta’s critics, concerned about the continuing erosion of civil liberties, contend that the legislator still fails to understand the real motivations of terrorists.
Republican Representative Tom Marino (PA–10) voted “Nay” on the amendment, and in an email to WBIG stated that issues “as sensitive as this require careful thought, honest debate, and as much public transparency [as] possible without compromising our national security.” He continued, “The Amash amendment not only had the potential to severely hinder our intelligence-gathering capabilities, it was also potentially unconstitutional,” and that the amendment “was overly broad and, as a result could have weakened our counterterrorism and intelligence capabilities unnecessarily.”
Assessing Marino’s comments poses a challenge. He states that the NSA issue needs more public transparency, yet he voted against an amendment that was a direct result of such public disclosures, continually supporting a program that operates in secret, with secret courts, secret warrants, based on secret interpretations of the law. It is confusing that the congressman would state that the amendment was unconstitutional, implying that the NSA surveillance activities are constitutional and legal. Also, Representative Amash directly addressed Marino’s concerns (quoted above). Thus, Marino’s statements seem dubious. The aforementioned Amash Fact Sheet clearly states:
The amendment does not affect foreign surveillance. FISA simply does not apply to the surveillance of purely foreign communications. See 50 U.S.C. § 1802. FISA court orders under Sec. 215 cover local telephone calls (wholly within the U.S.) and calls between the U.S. and abroad. NSA’s Sec. 215 phone surveillance program covers only calls in which at least one side is in the U.S.
In fact, Congressman Marino’s statement directly contradicts the letter of the amendment. Here is the amendment text in its entirety:
None of the funds made available by this Act may be used to execute a Foreign Intelligence Surveillance Court order pursuant to section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861) that does not include the following sentence: “This Order limits the collection of any tangible things (including telephone numbers dialed, telephone numbers of incoming calls, and the duration of calls) that may be authorized to be collected pursuant to this Order to those tangible things that pertain to a person who is the subject of an investigation described in section 501 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861).
After a heated debate, the amendment failed by a vote of 205–217.
If you have any questions or comments for your congressman, he and his staff can be reached in Washington at:
Rep. Tom Marino, 10th Congressional District
Wash. Phone: (202) 225–3731
Rep. Lou Barletta, 11th Congressional District
Wash. Phone: (202) 225–6511
Rep. Matt Cartwright, 17th Congressional District
Wash. Phone: (202) 225–5546