Key Congressional Staffers Who Helped Rein In Surveillance Overreach In The 1970s Ask Obama To Pardon Snowden

from the make-it-so dept

While it seems pretty darn clear that President Obama has no interest in issuing a pardon for Ed Snowden -- despite the well-organized campaign in support of such a pardon -- more and more people are stepping up to argue why Obama should change his mind on this. The latest is a big one: fifteen members of the Church Committee have sent President Obama and Attorney General Loretta Lynch a memo outlining the reasons why Snowden deserves a pardon.

The Church Committee, of course, was the Senate Committee that investigated excessive surveillance efforts by the CIA, NSA and FBI in the 1970s, and eventually led to a series of sweeping reforms that helped to rein in many of the worst abuses. Of course, after 2001, many of the restrictions were watered down, which gets us to where we are today. It's also notable, of course, that the Church Committee eventually morphed into the Senate Select Committee on Intelligence, better known today as the Senate Intelligence Committee. Yes, if you're a bit confused, the committee that was created to stop intelligence community surveillance abuses changed over the years into becoming the intelligence community's biggest defenders, rather than overseers. Today's Intelligence Committee (minus a few members) seems 100% focused on whining about Snowden. So it's fairly telling that the members who made up some of the key staff positions on the original committee are now speaking out.

The letter was put together by Frederick Schwartz, who was the Chief Counsel of the Church Committee and William Miller, who was its Staff Director (i.e., these weren't lowly staffers -- these were the guys who ran the show). And they're pretty damn concerned. The full letter is worth reading, but here's just a small excerpt:

Without Snowden, it would have been decades, if ever, until Americans learned what intelligence agencies acting in our name had been up to. We know first hand that lack of disclosure can cause just as many, if not more, harms to the nation than disclosure. When intelligence agencies operate in the dark, they often have gone too far in trampling on the legitimate rights of law-abiding Americans and damaging our reputation internationally. We saw this repeated time and time again when serving as staff members for the U.S. Senate Select Committee, known as the Church Committee, that in 1975-76 conducted the most extensive bipartisan investigation of a government’s secret activities ever, in this country or elsewhere.

They also point out the hypocrisy of Obama and his administration ignoring or granting leniency towards others who abused positions of power in the surveillance state, and who did so not to benefit the public, as Snowden did:

Some oppose leniency for Snowden because he violated the law. But many in the national security establishment who committed serious crimes have received little or no punishment. President Obama’s decision to “look forward, not backward” absolved from liability the officials who designed and implemented the torture and extraordinary rendition programs at the CIA and Defense Department during the George W. Bush Administration. It also meant that those who destroyed evidence of these crimes and misled Congress about illegal torture and surveillance would never face charges.

In addition, the government has also been lenient to high-level officials who made illegal disclosures or destroyed classified information. Examples are cases involving National Security Advisor Sandy Berger and CIA Directors David Petraeus and John Deutch.

CIA Director David Petraeus, who also had been a top general, violated the law and his obligation to protect national security information when he provided his biographer, who was also his close friend, with voluminous notebooks documenting Top Secret military and intelligence operations, as well as sharing classified information with reporters. He also made false statements to the FBI to avoid accountability for his actions. Yet he was allowed to plead guilty to just one misdemeanor for which he received no jail time. Former National Security Advisor Sandy Berger broke the law when he removed several highly classified documents sought by the 9/11 Commission from the National Archives and then destroyed them. He too was allowed to plead guilty to a misdemeanor and received a fine and probation. President Bill Clinton pardoned former CIA Director John Deutch before the Justice Department filed a misdemeanor charge against him for improperly taking hundreds of files containing highly classified information and storing them on an unprotected home computer. In all these cases, recognition of the public service the individuals had provided weighed against strict enforcement of the law, to come to a fair and just result.

There are, of course, differences between these cases and Snowden’s. But the crucial point is that only in Snowden’s case was the motivation behind his illegal activity to benefit America. The three others involved efforts to gain glory or avoid criticism, or simple convenience and simple disregard for the law that put our security at risk. Yet the perpetrators were treated leniently.

The memo goes on to explain why people claiming Snowden should have gone through "the proper channels" don't know what they're talking about, by pointing to the examples of those who did follow those channels, only to have their lives ruined with bogus Espionage Act cases. Of course, I'm not sure how that will appeal to Obama, since he supported those cases.

Still, it's good to see these individuals, who know perhaps better than anyone what happens when you have a surveillance state run amok, explaining to the President why what Snowden did was so important, and why he deserves a pardon.

Filed Under: church committee, ed snowden, loretta lynch, oversight, pardon snowden, president obama, senate, surveillance

Author Of Patriot Act As Well As Members Of Church Commission Tell Court NSA Has Gone Too Far

from the wow dept

Here's something I'd bet you never thought you'd see: the EFF teaming up with the author of the Patriot Act, Rep. Jim Sensenbrenner, to tell a court that the NSA is violating the Patriot Act. This is in the ACLU's lawsuit over the NSA's collection of metadata on all phone calls, which the DOJ is desperately trying to get out of. Here, Jim Sensenbrenner, with help from the EFF, has filed an amicus brief with the court, noting that the Patriot Act -- which the DOJ and NSA are relying on to claim the program is legal -- was never intended to allow this kind of activity. In fact, it was written to prevent this kind of activity.

The filing notes that Sensenbrenner originally received a draft of the Patriot Act from the DOJ five days after September 11, 2001, and found that it gave the government way too much power, so he redrafted the legislation specifically to prevent widespread abuses of investigative powers.

The parties can argue over the dictionary and legal definitions of the words “relevance” and “an.” But regardless of how those words are defined, one thing is clear: amicus, and the other Members of Congress who enacted Section 215, did not intend to authorize the program at issue in this lawsuit or any program of a comparable scope.

Amicus does not dispute that “relevance” is customarily given a broad meaning, and that he and his colleagues in Congress were aware of this broad meaning when they enacted and reauthorized Section 215. Nor does amicus dispute that Section 215 was intended to create a “sufficiently flexible” standard. See Defs’ Mot. to Dismiss at 24. But there is no suggestion in any legal precedent or in any statements in the legislative history that the relevance standard could justify the ongoing collection of the records of every telephone call made to or by every person on American soil, the vast majority of which Defendants concede will not be related even remotely to any terrorist activities.

To the contrary, amicus understood that “relevance” was commonly construed by the Supreme Court as a limiting factor that specifically prevented the bulk collection of records, even on a much smaller scale, on the belief that investigators might find the information useful at some point in the future.

Sensenbrenner's is not the only interesting amicus brief. A diverse group of interested parties have filed their own briefs as well -- including the NRA, Reporters Committee for Freedom of the Press and the PEN American Center. But another really interesting one was filed by former members of the Church Committee, the famous committee set up in 1975 to investigate and rein in the intelligence community after it became clear that they were abusing their powers. In this case, the filing comes from Gary Hart and Walter Mondale, two members of the Church Committee who may also be remembered for later (disastrous) attempts to run for President. This brief also involves a number of well-respected law professors who have spent a lot of time on related issues.

The full brief is well worth reading, giving the history of the Church Committee, and the FISA law which followed, and how it was designed to restrict the practices of the intelligence community and stop abuses such as widespread spying on the American public.

The government’s interpretation of “relevant” also contradicts Congress’ aim in enacting FISA. As discussed above, Congress designed the statute to be used in specific cases of foreign intelligence gathering. By limiting the targets of electronic surveillance, requiring probable cause, disallowing investigations solely on the basis of otherwise protected first amendment activities, and insisting on minimization procedures, Congress sought to restrict agencies’ ability to violate U.S. citizens’ privacy. The business records provision built on this approach, adopting the same definitions that prevailed in other portions of the statute, and requiring that agencies obtain orders to collect information on individuals believed to be foreign powers or agents of a foreign power. Congress later deliberately inserted “relevant” into the statute to ensure the continued specificity of targeted investigations.

In addition, Congress empowered the FISC to consider each instance of placing an electronic wiretap. The NSA’s program, in contrast, delegates such oversight to the executive, leaving all further inquiries of the databases to the agency involved. Once the NSA collects the telephony metadata, it is the NSA (and not the FISC) that decides which queries to use, and which individuals to target within the database.

This change means that the FISC is not performing its most basic function: protecting U.S. persons from undue incursions into their privacy. Instead, it leaves the determination of whom to target to the agency’s discretion.

When you basically have the people who were responsible for the various laws that the NSA is now relying on arguing in court that the NSA is clearly going beyond the intent of the laws, it seems rather clear that the NSA's case is on very thin ice.

Filed Under: church committee, gary hart, james clapper, jim sensenbrenner, nsa, nsa surveillance, patriot act, section 215, walter mondale
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