Surveillance Law Meant to Curb|Spying, not Boost It, Senators Say

MANHATTAN (CN) - Walter Mondale and another former senator who crafted the 1978 Foreign Intelligence Surveillance Act want to join in the fight against the National Security Agency's spying powers.

The so-called Church Committee, which published 14 reports on U.S. intelligence agencies and their operations, formed as members of Congress learned about the abuses of power in the Nixon administration.

With an 11-member panel comprised of six Democrats and five Republicans, the committee recommended the creation of a secret tribunal in a room of the U.S. District Court for the District of Columbia, tasked with overseeing the spying powers of intelligence agencies.

NSA whistle-blower Edward Snowden brought scrutiny to the Foreign Intelligence Surveillance Court (FISC), as it came to be known, this past June by disclosing a top-secret court order it issued that forces Verizon to "turn over, every day, metadata about the calls made by each of its subscribers over the three-month period ending on July 19, 2013." Critics have since pilloried FISC as a rubber-stamp for broad spying on U.S. citizens.

Litigation over the order has also taken root across the country, including an indictment against Snowden in Virginia, a swell of activity at the FISC in Washington, and lawsuits seeking to restrain the program in New York and California.

In Manhattan, the American Civil Liberties Union and its New York affiliate filed a federal complaint that asks a federal judge to declare the "dragnet" surveillance unconstitutional and issue an injunction to stop it.

Mondale, the Minnesota Democrat who served as vice president under Jimmy Carter, joined former U.S. Sen. Gary Hart, D-Colo., and more than a dozen law professors seeking to help the ACLU in court on Friday.

The 44-page filing contains a preview of the historical context they wish to share with U.S. District Judge William Pauley, whom they want to restrain the NSA's power.

The amicus, or friend-of-the-court, brief repeats Mondale's warning that the agency's "incredibly powerful and impressive" reach "could be used by President 'A' in the future to spy upon the American people."

At the time, Mondale had been referring to the NSA's Project Minaret, which at its height captured information on thousands of foreigners, U.S. citizens and domestic groups.

"Project Minaret, which represented precisely the type of surveillance program that FISA was designed to forestall, was not nearly as extensive as the telephony metadata program at issue in this case," the brief states. "Over the course of Project Minaret, for instance, the watch list expanded to include approximately 1,650 U.S. citizens in total. At no time were there more than 800 U.S. citizens' names on the list, out of a population of about 200 million Americans.

"Today, in contrast, there are approximately 316 million Americans, most of whom would have been subject to the Verizon (and similar) orders issued by the Foreign Intelligence Surveillance Court. This number eclipses the total number of U.S. citizens subject to one of the most egregious programs previously operated by the NSA, which gave rise to FISA in the first place." (Parentheses in original.)

The FISA court that the Church Committee recommended had been designed to prevent other programs that spied on U.S. Citizens, such as NSA's Project Shamrock (another warrantless wiretapping program with private sector participation), the FBI's Cointelpro program (which notoriously hounded civil rights luminary Martin Luther King Jr.) and the CIA's Operation Chaos (closed post-Watergate after it was found to have targeted groups like Students for a Democratic Society, the Black Panther Party and Ramparts Magazine).

The former Church Committee members say that they designed the FISC to prevent this history from repeating itself, but that the NSA strips the court of "its most basic function."

"Congress empowered the FISC to consider each instance of placing an electronic wiretap," the brief states. "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."

The former senators and professors backed the ACLU's call to stop the NSA's program.

Judge Pauley will decide whether to issue a preliminary injunction blocking it after hearing arguments scheduled for Nov. 1.

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