Groups like the ACLU hope to capitalize on the momentum of the NSA scandal. NSA scandal boosts privacy backers

The firestorm over National Security Agency snooping has given civil liberties groups, privacy advocates and libertarians new ammunition in their fight against the nation’s domestic surveillance regime.

Their challenge: winning that fight.


Lawmakers and the media are focused on civil liberties and privacy on a level not seen in recent years. Members of Congress are calling for a top national security official to be fired, demanding explanations from the White House and introducing bills to increase transparency of the intelligence apparatus.

So for groups like the American Civil Liberties Union, Electronic Frontier Foundation, Citizens for Responsibility and Ethics in Washington and others — loud, litigious and so far unsuccessful in rolling back domestic and foreign surveillance — this is a make-or-break moment.

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If they can keep the issue alive in the public sphere and keep Congress interested, it’s possible to see action on civil liberties and privacy. If they can’t, they may have lost their best chance to challenge the government’s surveillance operations: Like the failed climate change bill in 2010 or the Clinton-era health care plan, there’s a stigma to losing that can cause lawmakers to shy away from going back to the well on certain issues.

“Of course, it definitely has hurdles like anything else these days. But we’re going to give it another go. It’s the perfect opportunity,” Michelle Richardson, legislative counsel of the ACLU, told POLITICO.

“This is a unique situation,” she added. “There hasn’t been proof in black and white before that the government was spying on Americans. We are seeing new folks jumping into the mix.”

It will be difficult: The programs they’re fighting were approved by Congress, reviewed by the courts and administered by two successive presidential administrations. The White House and congressional leaders have defended them as necessary and polls show that the public has become increasingly comfortable with electronic surveillance.

Despite the odds against them, privacy advocates say the revelations of both a vast telephone dragnet and a secret NSA Internet monitoring program will help focus the attention on the issue like never before.

“These disclosures have come as a surprise or as a shock to many people and they have the potential to change the political calculus,” said Steve Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists. They “altered the landscape that might create new possibilities that creates room for legislation and even litigation that didn’t exist before.”

Their push makes sense, said Paul Rosenzweig, a homeland security consultant and former deputy assistant secretary for policy in the Department of Homeland Security during George W. Bush’s administration.

“It strikes me as very Rahm Emanuel-esque. He said never let a good crisis go to waste,” Rosenzweig said about the former White House chief of staff. “He said that about the financial crisis. It seems to be that they’re trying to do much of the same thing.”

Two groups — the ACLU and the conservative group Freedom Watch — have already filed lawsuits — with many more forming coalitions, signing letters, asking for grass-roots volunteers and exploring lobbying possibilities.

At the top of their wish list is a combination of transparency initiatives coupled with a legal rethinking of major surveillance programs. Their ambitious agenda is a broadside against the legal underpinnings of the Obama administration’s surveillance program, coupled with a renewed call for transparency.

1. Revise FISA and the PATRIOT Act

Civil libertarians would love nothing more than a full re-examination of the two laws that form the legal basis for the vast surveillance and snooping operation being conducted by the NSA. That includes revisions to both the body of the law and the sunset date.

Congress should make it clear that blanket surveillance of the Internet activity and phone records of a person in the U.S. is prohibited and violations can be reviewed before a public court, they wrote in a letter to members of Congress.

The PATRIOT Act — adopted shortly after the Sept. 11 attacks — was last renewed in 2011. The most controversial provision, the so-called business record provision, is the legal basis for the NSA’s vast collection of phone records.

Congress also tinkered with the Foreign Intelligence Surveillance Act — a 1978 law that permits federal surveillance — in the post Sept. 11 era, giving the government a legal framework for secret surveillance.

Tech and privacy groups unveiled a new coalition on Tuesday that has registered the website stopwatching.us, and aims to get grass-roots supporters to put pressure on Congress to repeal the controversial sections of the PATRIOT Act and FISA and enact more stringent privacy protections.

“What we’re seeing right now is this huge outcry from the public that Washington is responding to,” said Rainey Reitman, activism director for EFF. “What we would like to ensure is that the legislation that comes out of this will solve the entire problem instead of fixing it on the fringe.”

Outlook: Possible. When The New York Times revealed in 2005 that the Bush administration was wiretapping Americans without a warrant, Congress eventually took up the issue.

But such oversight might backfire. While Congress did end up looking critically at the warrantless wiretapping program, it ended up actually legalizing the bulk of the program and placing it under the control of a secret federal court.

“To some degree it was a ‘be careful what you wish for,’” Rosenzweig said. In 2008, “Congress actually looked at the program and said we actually need this.”

2. Reform the FISA court

Proceedings of the Foreign Intelligence Surveillance Court — the secret court that oversees the wiretapping law — are closed; only government lawyers appear before the court and all legal documents are classified. Civil libertarians and transparency advocates are hoping to change that.

A bipartisan group of eight senators Tuesday introduced a bill that would unseal some of the FISA court’s classified opinions that authorized requests for surveillance.

“This revelation is the latest in a growing body of revelations that show how the federal government’s excessive secrecy leads to a culture of unaccountability that permits such abuses of authority to occur,” Patrice McDermott, executive director of OpenTheGovernment.org said in a statement.

Outlook: Unclear. The court’s proceedings were designed to be secret, but there seems to be extensive congressional interest in the topic. “You can’t have a secret court that’s transparent,” quipped Rosenzweig.

Supporters of the court say revealing the court’s proceedings would essentially reveal to terrorism suspects that the government is monitoring them.

3. Launch a Church Committee-style investigation

Several groups this week proposed a Church Committee-style investigation into the Obama and Bush administration’s domestic spying programs.

Activists, in a letter to members of Congress signed by more than 80 groups — called for the establishment of a new Church Committee.

“We want to hold public officials accountable,” said Adi Kamdar, an activist with EEF. “We want to know who’s responsible for this unconstitutional surveillance.”

The original committee — headed by Sen. Frank Church (D-Idaho) — investigated domestic and foreign intelligence by the CIA, NSA and FBI in the 1970s. The commission was prompted by reports of abuses, including the reported assassination of foreign leaders.

And ironically, it was the recommendations of the Church Committee that led to the passage of the FISA law and the creation of the FISC — the very panel that civil libertarians now believe has abused its power.

Outlook: Unlikely. The Obama administration has repeatedly insisted that congressional leadership was fully aware and briefed on all of the programs.

4. Release the secret OLC memos

The NSA spying scandal has put the idea of secret law front and center in the national conversation. One group wants to use the scandal to get the Obama administration to release the long-sought secret cadre of legal interpretations — including secret opinions on the Obama administration’s use of drones against American citizens — classified by the Office of Legal Counsel.

Citizens for Responsibility and Ethics in Washington renewed its call for those opinions to be released. “Nearly 40 percent of these opinions have been withheld over the past decade-and-a-half, creating a large corpus of secret law that is effectively unreviewable,” CREW argues in a blogpost.

The issue has also been highlighted by members of Congress over the past few years. Sen. Ron Wyden (D-Ore.) and several other senators held up John Brennan’s CIA nomination until senators were given the drone memos, and he has been outspoken in his views that the administration should release them to the public.

Outlook: Unclear. The Obama administration has resisted declassifying the memos until now. There’s also no direct link between the memos and the NSA spying — the most controversial of the memos focus on the legal basis for the Obama administration to use drones.

5. Hearings

At the very least, privacy advocates want to have an open debate about the need for the recently disclosed surveillance programs.

Wednesday’s Senate hearing on protecting Americans from cyberattacks — a completely separate issue — could already be considered a victory for these groups. Senators grilled NSA Director Keith Alexander about call-tracking surveillance conducted under PATRIOT Act Section 215, among other issues, which is more than they have done in the past.

Outlook: Certain. Everybody loves a hearing.

“Sen. Feinstein has basically endorsed the idea of open hearings,” Aftergood said. “That of all things, should be easy to do.”

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