USA Freedom and the Surveillance Reform That Almost Was

Committee markups can be a dry affair, an opportunity for political showboating, or both. Yesterday’s markup of the USA Freedom Act in the House Judiciary Committee was neither. It was a rare and fascinating discussion among members wrestling with whether they should vote for an important amendment they all supported — and risk tanking a bill many support as well.

Here’s the background: the USA Freedom Act undertakes to end the bulk collection of Americans’ business records under foreign intelligence authorities. Although observers have differing views over how effectively it does that, a solid bipartisan majority of the House supports ending bulk collection. The bill, however, doesn’t address the other authorities or rules — like Section 702 of the FISA Amendments Act (FAA) and Executive Order 12,333 — under which the NSA conducts much larger surveillance programs that sweep in vast amounts of Americans’ communications and data.

At yesterday’s markup, Rep. Ted Poe (R-Texas), a former prosecutor and judge, offered an amendment that would address a particularly controversial aspect of Section 702: “back door searches.” This term refers to the government’s practice of searching communications collected without a warrant by the NSA through programs that target only foreigners for Americans’ calls and e-mails. Poe’s amendment would have required government officials to obtain warrants before conducting these searches. 

It was clear from their comments that a majority of committee members supported the goal of the amendment. Indeed, no member spoke against it on substantive grounds. But Committee Chair Bob Goodlatte (R-Va.) explained that the bill represents a fragile compromise — primarily with members of the House Intelligence Committee (HPSCI) — and that House leadership had made clear the bill would not get a floor vote if the Judiciary Committee amended it. (Whether leadership is carrying the water for HPSCI or vice versa — and what role the administration is playing here — are unanswered questions that deserve their own blog post.) The members were faced with a choice: acknowledge the terms set by House leadership and vote against an amendment designed to restore critical Fourth Amendment protections for Americans, or reject those terms and possibly derail surveillance reform altogether.

That’s where things got interesting, as the members spent an hour thoughtfully parsing what the right course of action was. (In the video, the amendment was proposed at 1:11:00.) More than one member characterized Poe’s amendment as an example of “the perfect being the enemy of the good.” There was consensus that back door searches implicate the Fourth Amendment. But, Goodlatte said, so does the bulk collection of Americans’ phone records — an important statement, given the FISA Court’s controversial rulings to the contrary. By killing the bill’s chances of a floor vote, Goodlatte implied, Poe’s amendment would be a net negative for the Fourth Amendment. Goodlatte also pledged to hold hearings on Section 702 in the near future, and to work with Poe to find opportunities outside of the context of the USA Freedom Act to address the problem.

Other members, though, were not willing to accept House leadership’s efforts to constrain them. Rep. Zoe Lofgren (D-Calif.) posed the key question of the morning: what can members do when House leadership is blocking reform favored by a majority of the House? Poe’s amendment mirrored an amendment offered last year by Lofgren and Rep. Thomas Massie (R-Ky.) to a defense appropriations bill; that amendment passed overwhelmingly, 293–123, with 94 Republicans voting in favor. Lofgren suggested it might be time to consider a discharge petition — a procedural measure by which a majority of House members can bring legislation to the floor for a vote even if House leadership objects. She acknowledged that it’s difficult for the majority to buck the will of leadership, but that this was a case of “right versus wrong,” pitting the Constitution against “lawless behavior.”

Poe showed even more frustration. Addressing Rep. Jim Sensenbrenner’s (R-Wis.) observation that the Committee would have a chance to revisit Section 702 in 2017 when the FAA expires, Poe observed dryly that the Committee was not simply delaying the building of a bridge. It was delaying vital Fourth Amendment protections for Americans. He put the question simply: do politics trump the Constitution, or does the Constitution trump politics? He urged fellow committee members not to let leadership’s threats dictate their vote. He said they should support the amendment and let the political chips fall where they may.

Ultimately, pragmatism won the day, with 24 members voting against the amendment and 9 members voting for it. Many supporters of the USA Freedom Act inside and outside Congress breathed a sigh of relief, knowing that this vote likely cleared the way for the bill to proceed through the HPSCI and to the floor, where it has an excellent chance of passage.

And yet, relief is not the same thing as satisfaction. Poe summed up the feeling in the room — and among many civil liberties advocates — when he said, “Everyone who’s spoken against it is actually for the amendment. It’s a sad day for America.” 

About the Author(s)

Elizabeth Goitein

Co-Director of the Liberty & National Security Program at the Brennan Center for Justice, Former Counsel to Sen. Russ Feingold Former Trial Attorney in the Federal Programs Branch of the Civil Division of the Department of Justice You can follow her on Twitter (@LizaGoitein).