When the White House and the National Security Agency went all out to defeat Rep. Justin Amash's amendment to cut funding for NSA's massive collection and storage of Americans' telephone records, the Michigan Republican cited that opposition as a point in favor of passing the measure.
"When's the last time a president put out an emergency statement against an amendment?" Amash (shown) tweeted late Tuesday night. "The Washington elites fear liberty. They fear you." On Wednesday, the House narrowly defeated his amendment 207-217, much closer than the White House would have liked.
Amash's amendment to the defense appropriations bill would have limited the surveillance of phone records to cases where the NSA could demonstrate a reasonable suspicion of terrorist activity, instead of the current practice of gathering billions of call records from an unknown number of millions of Americans' everyday communications. NSA officials have argued that the agency needs to have those records in order to trace the contacts made by and to suspected terrorists. Civil libertarians claim the practice is a government overreach and a serious invasion of privacy rights and expectations of the American people.
"This is the moment," Michelle Richardson, a surveillance lobbyist for the American Civil Liberties Union told the British publication The Guardian, as backers of the amendment sensed support growing in Congress and the public at large for some means of limiting the extent of the government's data collection under Section 215 of the PATRIOT Act, a revamping and expansion of intelligence gathering authority passed by Congress following the terrorist attacks of September 11, 2001. "Just how important this vote is was underlined when they started doing the classified briefings and the intelligence community came out in full force and acknowledged this amendment would stop their bulk collection under 215," Richardson said.
Warrants for the data collection are routinely issued by the secret Foreign Intelligence Surveillance Court, established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The law was passed after revelations in the mid-1970s of illegal CIA and FBI activities prompted Congress to establish procedural safeguards against excessive surveillance carried out in the name of fighting crime and protecting national security. Instead, the FISA court became "a bureaucratic mechanism to rubber stamp government applications for surveillance," wrote John Whitehead of the libertarian Rutherford Institute in an article appearing Wednesday at lewrockwell.com.
"Deference to government requests for surveillance has only been exacerbated since 9/11," Whitehead wrote. "Before the PATRIOT Act was passed, collection of foreign intelligence information had to be the sole or primary purpose of the surveillance. However, after the PATRIOT Act, collecting foreign intelligence information merely had to be a 'significant' part of the surveillance. The PATRIOT Act also allowed for a 'roving wiretap,' which meant that government agents no longer had to designate a particular number or line to be bugged. This has led to the government forcing telephone and internet providers — some willingly and some not so willingly — to hand over vast troves of information on American communications." Only 11 of the 33,949 warrant applications submitted over the history of the secret court have been turned down," Whitehead wrote. "Out of those 11, at least four were granted partial warrants later."
The National Security Agency was created in 1952 by order of President Harry Truman, and for decades it was so shrouded in secrecy that even Congress was not supposed to know of the NSA's existence, let alone its activities. That the letters stood for "No Such Agency" was said to be an oft-repeated joke shared by those who knew otherwise. Its activities have come to light from time to time, as when the New York Times published a front-page story in December 2005 of the NSA's warrantless interception of international phone calls made from and to the United States under the Bush administration. Though Barack Obama spoke out against the surveillance program as a U.S. senator and candidate for president, the collection of "metadata" has continued and grown, albeit with secret warrants from the FISA court, during the Obama presidency.
"Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications," wrote Dana Priest and William M. Arkin in the 2010 Washington Post series "Top Secret America," later the title of a book by the same authors. "The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work," Priest and Arkin reported at the end of their two-year study. "After nine years of unprecedented spending and growth, the result is that the system put in place to keep the United States safe is so massive that its effectiveness is impossible to determine."
Edward Snowden, a systems administrator for NSA contractor Booz Allen Hamilton, created shockwaves in the nation's military and intelligence establishments this spring when he revealed the extent of the NSA's gathering and storage of phone records and electronic communications in a secret program dubbed PRISM. Snowden provided documentation of the program to The Guardian and the Washington Post before fleeing from his Hawaii home to Hong Kong, where he acknowledged in an interview with The Guardian that he was the "leaker" of the documents and information about the program. On June 23, he flew from Hong Kong to Russia, where he remains in a Moscow airport, seeking temporary asylum from the Russian government. Russia has thus far announced no decision on the application and has resisted U.S. demands that Snowden be returned to the United States to face charges of espionage and theft of government property.
Prior to Wednesday's vote on the Amash amendment, NSA Director Gen. Keith Alexander and other agency officials spent hours on Capitol Hill Tuesday in an effort to persuade House members to kill the Amash amendment. Rep. Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, and Dutch Ruppersberger of Maryland, the committee's top Democrat, issued an open letter to their colleagues urging defeat of the measure. Ironically, the Obama administration, which came into office in 2009 with pledges of openness and transparency, defended the secret surveillance program — operating under secret warrants issued by a secret court — by arguing that the amendment to curb that program did not emerge through an "open" process.
"This blunt approach is not the product of an informed, open or deliberative process," according to a statement issued late Tuesday by White House Press Secretary Jay Carney, warning against a move to "hastily dismantle" a counterterrorism tool. Amash framed the issue somewhat differently.
"Today, Members of Congress will have to answer a simple Q:" he tweeted. "Do you oppose blanket, suspicionless collection of all Americans' phone records?"
Photo of Rep. Justin Amash: AP Images