Thankful for Those Struggling to Limit the NSA

On Monday the Supreme Court, ruling on an emergency petition, declined to do the right thing and hear a case challenging the massive government surveillance of Americans, revealed by the leaks from Edward Snowden. For the time being, the court acceded to the Obama administration’s argument that it has the legal right to continue its unprecedented bulk collection of American phone records without any restraint. That throws the ball back to Congress, where a historic battle, crossing party lines, is already underway.

On one starkly polarizing side is the dark figure of Dianne Feinstein, the California Democrat and reigning chair of the Senate Intelligence Committee. One of the first to denounce Snowden for treason for letting the public know the ugly truths about government spying she had long concealed, Feinstein already has pushed a bill though her committee that provides the NSA’s spying with additional legal cover.

It validates the “backdoor search provision” that the government, including domestic organizations such as the FBI, has misused to justify sifting through material ostensibly collected for foreign intelligence investigations to conduct warrantless surveillance on Americans in clear violation of the Fourth Amendment to the U.S. Constitution.

“For the first time, the statue would explicitly allow the government to proactively search through the NSA data troves of information without a warrant,” the ACLU’s Michelle Richardson told The Guardian on Friday. She added, “This Fourth Amendment back door needs to be closed, not written into stone.”

Sen. Ron Wyden, D-Ore., one of the dissenting members of Feinstein’s committee, blasted the “backdoor search provision” at the heart of her bill and said in a statement that it “would give intelligence agencies wide latitude to conduct warrantless searches for American phone calls and emails. …

As opposed to the Feinstein bill, one offered by another Democratic senator, Patrick Leahy of Vermont, and supported by Wyden would require a specific warrant to search the NSA database for information on U.S. nationals. Leahy, chair of the Senate Judiciary Committee, has co-sponsored that bill with his House counterpart, F. James Sensenbrenner, the Wisconsin Republican who chairs that chamber’s judiciary committee.

A decade ago, Leahy and Sensenbrenner helped draft the USA Patriot Act, which they now believe has been abused by the executive branch and underscore the point by labeling their new legislation the USA Freedom Act. Sensenbrenner has been at pains to present his bill as contrary to the Feinstein measure, which he assailed as an effort “for the first time in our country’s history to allow unrestrained spying on the American people.”

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