This article first appeared in the St. Louis Beacon, Aug. 6, 2013: WASHINGTON – While this week's focus is on possible terrorist threats to U.S. installations abroad, Congress -- when it returns next month -- may seek more transparency in government surveillance programs that officials say help deter such terror at home and abroad.
Shortly before Congress went into its summer recess last week, U.S. Sen. Dick Durbin, D-Ill., added a provision to the 2014 defense spending bill that would require the National Security Agency (NSA) to disclose more information about its phone-data surveillance programs, which caused a national furor after details were leaked in June.
“I believe the government can obtain the information it needs to combat terrorism in a far more targeted manner, rather than casting a dragnet for information about millions of innocent Americans,” said Durbin
The senior Illinois senator chairs both the Senate's defense appropriations subcommittee and a Judiciary panel on the constitution. For years, he has called for years for limits on data collection, which Congress had approved in the wake of the 2011 terror attacks.
Durbin’s measure – which would require the NSA to disclose the number of phone records it has collected through its bulk surveillance program as well as how many records were reviewed by the NSA – reflected what appears to be growing skepticism in Congress about the agency’s sweeping counterterror program that collects and stores the phone records of millions of Americans.
“It’s time that we take a cold hard look at what we are doing and how effective it’s been,” said U.S. Sen. Claire McCaskill, D-Mo., referring to the NSA collection of “meta-data” such as phone records.
Noting that it has been more than a decade since Congress approved the Patriot Act allowing such programs, McCaskill told reporters last week that Congress should assess “whether or not we need to recalibrate it and perhaps provide more transparency.”
She added: “For the first 10 years after 9/11, it may be that the pendulum swung too far. And maybe we need to bring it back to the middle. I want to be part of that effort.”
U.S. Sen. Roy Blunt, R-Mo., a former member of both the House and Senate intelligence committees, also has expressed concerns about mass storage of such data, which he described in June as “troublesome.” In June, Blunt told reporters that he was “concerned by the volume of records the federal government is keeping and future potential uses for those records.”
On Monday, a spokeswoman for Blunt said the senator "is monitoring this situation very closely. He's reviewing the various proposals with an eye toward increasing transparency, but he would have concerns surrounding any proposals that defund the program completely."
Last week, President Barack Obama met with Durbin and several other lawmakers with influence over national security issues to discuss their concerns and various proposals to limit or increase the transparency of surveillance. There are numerous proposals in the House and Senate.
Under Durbin’s subcommittee-approved measure, for instance, the NSA would be required to reveal when it started its “bulk data collection” actions, how much those programs costs, the types of records it collects and outline any future plans for bulk surveillance.
“In the end, Congress permitted this type of intrusion because too few demanded a balance between security and our constitutionally protected freedoms,” Durbin said last week. “I hope this provision will help reopen the debate.”
Other members of Congress want to go further than Durbin’s proposal. On July 24, the House barely defeated, 217-205, an amendment sponsored by U.S. Rep. Justin Amash, R-Mich., to bar the NSA from collecting records on individuals who are not under investigation.
Even though the White House and the leaders of both political parties opposed the measure, 94 House Republicans and 111 Democrats voted for it.
Among those supporting the proposed NSA restrictions were Missouri’s most liberal congressman – U.S. Reps. William Lacy Clay of St. Louis and Emanuel Cleaver of Kansas City – and one of the state’s most conservative House members, U.S. Rep. Jason Smith, R-Cape Girardeau, and Illinois U.S. Rep. Rodney Davis, R-Taylorville.
The other House members from the St. Louis region – GOP U.S. Reps. Ann Wagner of Ballwin and Blaine Luetkemeyer of St. Elizabeth, as well as U.S. Rep. Bill Enyart, D-Belleville – voted against the Amash amendment. The remaining Missouri Republicans also opposed the measure.
Civil liberties, privacy vs. national security
Much of the debate has focused on the “FISA court,” a top secret court – established by the Foreign Intelligence Surveillance Act – that approved the NSA surveillance programs. Several Democratic senators, including U.S. Sen. Tom Udall, D-N.M., introduced a bill recently to revamp the court’s procedures to require a bit more transparency.
“We have a situation where you have civil liberties in the Constitution and the right to privacy, and counterbalancing that with national security,” Udall told NPR. He suggested asking the FISA court “to tell us how you legally reason the conclusions you come to in your opinions, what are those opinions, taking out the national security data.”
McCaskill, a member of the Senate Armed Services Committee – as is Blunt – said she is looking at the various proposals related to the court and to metadata collection and storage.
“It makes me uncomfortable, some of what I’ve learned,” she said. A big question: “Is the FISA court really pro-forma? Or are they actually looking carefully at what they are being asked to approve?”
McCaskill said, however, that most Americans appear willing to accept surveillance if it helps protect them from possible terrorist attacks.
“All of this is a healthy discussion for us to have, and I’m all for it,” said McCaskill. “It is important to point out that one of the reasons there is less transparency here than other places of our government is that it’s hard to catch people if they know how we’re doing it
“You’ve got to weigh how important it is to keep some of these tools to catch terrorists versus how important it is that we have transparency and strict adherence to what all of us hold dear: civil liberties. So that’s the balance that’s going on here.”
NSA officials and the Obama administration have said the metadata surveillance has helped stop dozens of potential attacks, and McCaskill said many Americans are willing to give up some privacy to make such protection possible.
“If you ask people in America, ‘ Do you think it’s right that stores can put up cameras to capture you when you walk in a public street and save the film?’ I’d guarantee what they’d say in Missouri: I bet two-thirds of the people would say, absolutely not,” McCaskill said. “But I didn’t hear that hue and cry going up when they used that to catch the bombers in Boston.
“That’s the kind of balancing that you are looking at here. If we go too far, we’re not going to catch anybody.”