Sen. Dianne Feinstein, D-Calif., the chair of the Senate Select Committee on Intelligence and a longtime defender of the National Security Agency, unveiled plans Thursday for legislation designed to rein in some aspects of the NSA’s controversial domestic surveillance programs.
At a rare open hearing of the intelligence panel, Feinstein said her legislation would limit the NSA’s access to the so-called metadata it collects on Americans’ cell phone usage and would seek to codify the legal standard under which such data could be searched by NSA workers.
The legislation also would require the NSA to reveal more details about its use of the information it collects under two U.S. laws, the USA Patriot Act and the Foreign Intelligence Surveillance Act, including making annual reports to Congress on how many times NSA searches its database of cell phone information.
Feinstein’s championing of legislation to put new restrictions on the way the NSA operates was something of a surprise and signals that Obama administration efforts to contain congressional complaints about the programs have failed for now. She announced her initiative at a hearing where Director of National Intelligence James Clapper and the NSA chief, Army Gen. Keith Alexander, appeared.
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Both Clapper and Alexander, as they have in previous hearings, defended the broad collection of data, saying that steps had been taken to ensure the privacy of innocent Americans was protected. Clapper insisted that the public discussion of the programs in recent months had hurt the effectiveness of the programs.
But Feinstein’s acknowledgement that some kind of change was needed was an indication of how much credibility the intelligence chiefs had lost in the months since former NSA contractor Edward Snowden revealed secret court orders that authorized the daily collection of cellphone records from hundreds of millions of Americans, something Clapper had denied in congressional hearings.
Previously, Feinstein had insisted that the agency’s programs were constitutional and had warned against any changes that might jeopardize their use in terrorism investigations. But she acknowledged that growing public scrutiny in the wake of the Snowden leaks showed the need for changes – though she put the onus for that not on the programs themselves but on the news media’s reporting of them.
“The leaks of classified programs and the way that those leaks have been portrayed in the media . . . has led to an unfortunate but very real amount of public skepticism and distrust of the intelligence community,” she said.
She also drew attention to a presidential order, Executive Order 12333, which was last amended in 2008, that she said authorizes the collection of intelligence information outside the Foreign Intelligence Surveillance Act. “I have also initiated a review of all intelligence programs – beyond FISA – that have the potential of capturing information about American citizens and other people inside the United States,” Feinstein said.
Whether Feinstein’s proposals would satisfy complaints about the programs was uncertain. Sen. Ron Wyden, D-Ore., a member of the intelligence committee, said he would continue to press legislation that he and three other senators are backing to put more restrictions on the NSA.
Feinstein said her bill would “expressly prohibit collection of the content of phone calls” – something the NSA says it does not do now anyway – and “codify” the standard of “reasonable and articulable suspicion” needed to access phone records – a legal standard that critics of the NSA program said has been misused by administration attorneys.
Feinstein’s bill marks the third piece of major FISA legislation unveiled in a week. The renewed focus suggests that, despite pressing budget issues, legislators are unhappy with the status quo in the nation’s intelligence practices.
A House Intelligence Committee member, Rep. Adam Schiff, D-Calif., announced a bill Friday that would make substantial changes in the operations of the secretive Foreign Intelligence Surveillance Court, which interprets the laws that allow for the NSA’s sweeping data collection programs. Schiff’s bill would add a constitutional advocate to the court’s proceedings to represent public interest when making decisions on the NSA’s programs.
Wyden’s bill, which he is sponsoring with a fellow intelligence committee member, Sen. Mark Udall, D-Colo., as well as Sens. Richard Blumenthal, D-Conn., and Rand Paul, R-Ky., also would establish a constitutional advocate to appear before the Foreign Intelligence Surveillance Court, which currently hears only from government attorneys in its arguments.
Members of Congress said Thursday that some change in the way the NSA operates is inevitable, even if it is limited only to revising what information the agency must divulge to Congress.
Sen. Angus King, an independent from Maine and a member of the intelligence panel, predicted that bills would also emerge from the Senate Judiciary Committee, and Senate Minority Whip John Cornyn, R-Texas, said that changes in the way the intelligence community collects data and reports on it are necessary.
Judiciary Committee Chairman Patrick Leahy, D-Vt., said that legislation might be announced at a hearing of his committee next week, where Clapper and Alexander are expected to testify again.
Correction: This updated version of the story corrects the number of the referenced executive order. It is 12333.