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Congress Alert

NSA Wolves in Reformers' Clothing


There is nothing so dangerous as when Washington starts "reforming" something. Usually it means that despite best obfuscation efforts the administration or Congress has been caught doing something -- or not doing something -- sufficiently outrageous to create a public stir.

Once caught, said government body does not simply cease and desist or make good on its mistake. Instead, a commission is formed made up of current and former government officials and other Washington insiders, an expensive study is funded revealing that the problem was simply not enough oversight (i.e. government workers on the payroll), and a grand but confusing multi-part scheme with everything thrown in but the kitchen sink is implemented to great fanfare and media praise. The impression is left that the problem has been solved. Until the next time.

The growing controversy over the National Security Agency's outrageous programs for the bulk collection of American citizen information is no different. Though one might have expected even more American anger with each increasingly damning revelation -- after all, we were told that the intelligence agencies needed the PATRIOT Act to go after terrorists, not the rest of us -- there still has been enough unrest amongst citizens to call in the reform brigades.

A likely wake-up call to the "reformers" was the recent amendment offered by Rep. Justin Amash to simply defund those most egregious parts of the NSA domestic spying program. Defunding a program is one of the most powerful tools in the Congressional arsenal because it is effectively the use of an eraser. In the effort to protect civil liberties, just undoing bad legislation is elegant and effective.

The unexpected near-victory of the Amash amendment sent Washington into panic mode. The fragility of the collection programs was made evident once populist opposition was aroused. How to maintain as much of the status quo as possible while giving the impression of having listened to the electorate? Answer: pass NSA reform bills!

Senator Ron Wyden (D-OR) has this week unveiled his legislative fix for the worst of the NSA abuses. Senator Wyden has shown himself to be one of the most dependable advocates of civil liberties since the departure of Sen. Russ Feingold, and his efforts at improving the current intolerable situation should be taken as a sign of his good faith. Therefore "reform" describing his efforts should not be so much the four letter word it is with others. It is not de-funding or striking existing legislation or repealing the Patriot Act, which is the real solution, but its passage would nevertheless improve the current status quo.

But into the breech rides competing legislation by the master reformers.

Enter Senator Diane Feinstein (D-CA), who has long been a reliable advocate for the authoritarian surveillance state. Feinstein's competing reform bill was released this week. Feinstein's is classic Washington reform: it seeks to rein in NSA powers by actually expanding NSA powers, adding in a few cosmetic flourishes like mandatory reporting to Congress, etc. Yes that is correct: Feinstein's reform will actually grant even more surveillance authority to the NSA. According to the Washington Post:
At the same time, the bill would give the NSA even greater powers to spy on foreign suspects, by giving the agency a seven-day window during which the NSA could ask the FISA court for a traditional warrant when such a suspect arrives in the United States (right now, the NSA's right to monitor a foreign national ends when he arrives).
It is one of the ironies of Washington that reform efforts provide an excellent opportunity to make bad legislation worse, and Feinstein is displaying her master skills in this department. In the dialectics of Washington, we can expect "compromise" legislation that may include some weaker aspects of Wyden's reforms while incorporating some of the worse of Feinstein.

So beware NSA spying and beware the PATRIOT Act and beware FISA reauthorizations. But most of all...keep your eyes on the reformers!
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