July 23, 2013
By Paul Rosenzweig
A proposed amendment to the pending Department of Defense appropriations bill being offered by Representative Justin Amash (R–MI) takes the wrong approach to an important question.
Coming on the heels of the recent National Security Agency (NSA) scandal, the amendment would limit the federal government’s intelligence-gathering capabilities. At its core, the proposed amendment is probably unwise and possibly unconstitutional.
What the Amendment Would Do
The proposed amendment would prohibit the federal government from executing any foreign intelligence surveillance order, unless the order from the court contained a particular sentence: “This Order limits the collection of any tangible things (including telephone numbers dialed, telephone numbers of incoming calls, and the duration of calls)…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).”
In other words, the amendment would undo the NSA’s current metadata authority and limit the collection of telephone metadata to only those who have already been identified as agents of a foreign power.
As a matter of policy, the amendment is a blunt instrument that summarily terminates a program that the federal government, under two very different Administrations, has thought vital. At a minimum, it appears that the Amash amendment would increase the risks of terrorist attacks by limiting the scope of court-ordered foreign intelligence collection and thereby depriving the U.S. of valuable intelligence it currently collects. As a public letter from a half-dozen former officials put it in supporting the current Administration: “Denying the NSA…access to [telephone meta] data will leave the Nation at risk. If the relevant standard of section 215 does not permit the government to acquire large data collections where necessary to preserve the data and to be able to conduct focused queries based on reasonable suspicion, our counterterrorism capabilities will be severely constrained.”
To be sure, the program raises important policy questions. But they are ones that have not yet been fully examined. It is at least an open question whether existing processes under the Foreign Intelligence Surveillance Act and related minimization procedures, the role of courts under that Act, and Executive Order 12333, as amended, provide the appropriate protection for American privacy in the context of such court-ordered collection. If they do not currently satisfy those requirements, then rather than the prohibition envisioned by the Amash amendment, Congress should consider modification that protects privacy without sacrificing vital intelligence-gathering capabilities.
Perhaps most importantly, the amendment comes perilously close to being a violation of the principle of separation of powers. Congress can, of course, change a law that a court construes and enforces, but Congress cannot by law command that a court put particular language into a court order. The amendment’s sponsors may respond that they are not directing the Court to act but rather only directing the executive branch to not act if the court declines to include the mandated language. But that is a scant distinction: In either case, Congress is using the power of its purse to force a particular judicial result.
Again, without more substantive consideration than is currently being given the concept, the proposed mechanism seems too blunt—and it may endanger national security.
More Thought Is Needed
In the end, Congress is right to be interested in the NSA program. The disclosures, for good or ill, have brought to light a practice that many Americans view with concern but that other Americans will see as essential programs in defense of the nation. Before Congress rushes headlong to prohibition through legislation, more thought is needed.
—Paul Rosenzweig is a Visiting Fellow in the Edwin Meese III Center for Legal and Judicial Studies and the Douglas and Sarah Allison Center for Foreign Policy Studies, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.
Show references in this report
Michael B. Mukasey et al., “Open Letter in Support of the Recently Disclosed NSA Programs,” July 23, 2013.
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