Transcript: Testimony of Professor Stephen Vladeck on possible reforms to the NSA surveillance programs – Oct. 29, 2013

Partial transcript of testimony of Stephen I. Vladeck, Professor at American University Washington College of Law, on possible reforms to the NSA’s surveillance programs before the House Intelligence Committee on Oct. 29, 2013:

…I think reasonable people will certainly continue to disagree about the proper scope of NSA’s surveillance authorities, whether under Section 215, Section 702 or other programs.

Rather than devote my brief time to taking sides in a debate that’s been thoroughly joined, I’d like to focus my testimony today on three brief propositions that I expand upon in my written statement – points in which we all actually have common cause.

So first, I think it’s important to keep in mind the extent to which these surveillance authorities should be calibrated as FISA was in 1978 in order to work around and avoid resolution of unresolved tensions in the Supreme Court’s Fourth Amendment jurisprudence.

Congress is of course free, and oftentimes must, legislate in the shadows of the Constitution and the gaps created by the Supreme Court’s case law. But there’s a significant risk when Congress does so, whereas such drafting into gaps empowers the government to act. The more expansively the executive branch fills those gaps, the more likely it is to invite judicial intervention and even circumscription if the courts are uneasy about the adequacy of the statutory limitations that the legislature has prescribed.

Indeed, as the pending lawsuits filed by the ACLU and EPIC among other illustrate, we may already be reaching the point in which the federal judiciary beyond the FISA court will be reviewing these programs.
Second, regardless of where one comes down on the merits, the inevitability of full-throated judicial review of these programs should provide its own impetus for meaningful reform. It’s obvious why those who question the government’s interpretation and underlying constitutionality of these authorities desire change. But even those who approve of programs such as bulk metadata collection and PRISM should also embrace reform if only to increase the likelihood that these programs will survive such judiciary review.

On the statutory side, it should follow that the more precise the fit between the substantive authorities Congress has provided and the specific programs that the government is undertaking, the more likely courts will uphold the executive branch’s understandings.

And with regard to constitutional considerations the clearer it is that these authorities include meaningful checks and balances, designs that minimize their impact on our constitutional rights and other privacy interests, the more likely courts will find to be consistent with the Fourth Amendment.

Third and perhaps most significantly, once we accept the urgency of some kind of FISA reform, we should also appreciate that there are any number of meaningful and responsible ways to get there from here, both with regard to reforming the substance of the government’s surveillance authorities and the processes through which they are exercised.

On the substantive front, even if we can’t all agree on whether the controversial collection authorities should be scaled back in the abstract, Congress could certainly move to codify baseline minimization requirements for each content-based surveillance program rather than leaving them up to the discretion of the executive branch and the FISA court to better limit how the government is allowed to use the information it is collecting. Congress might then provide stiffer penalties for violations of those rules as a means of giving the minimization requirements teeth that for now they’re arguably lacking.

With regard to process, I also believe, perhaps contrary to my friend, Mr. Bradbury, that there’s much to commend proposals for some kind of special advocate to participate in at least some proceedings before the FISA court in order to present adversarial briefings and arguments and object in cases in which he believes the FISA court has erred. Indeed, Mr. Chairman, as you know, Congress when it enacted both Section 215 and Section 702 provided for exactly that kind of adversarial process. In many ways, that ship has already sailed.

There’s also plenty of room for Congress to bolster the existing notice requirements for cases in which the government seeks to use FISA-derived evidence in criminal prosecutions and to otherwise exert pressure on the FISA court to publicize its decisions to the maximum extent practicable.

And significantly, such reforms should not just focus on responding to the controversies of the moment, to the 215 and 702 programs. If we’ve learned nothing else from this summer, hopefully we’ve learned the value and importance of meaningful public discourse and debate on this whole bucket of issues and along with that the costs to the government of having to defend these programs only after damaging disclosures concerning their scope and their substance.

Ultimately, Mr. Chairman, regardless of which specific path Congress chooses to take, the critical point for present purpose is is that it is a false dichotomy to suggest, as some have, that the choice is between preserving the status quo and undermining the efficacy of these programs.

Simply put, sufficiently careful and comprehensive FISA reform will only further our national security while better protecting our civil liberties.

And for those who would say that the existing oversight mechanisms are sufficient because they are so voluminous, all I would say is anything is more than nothing.

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10 Comments on “Transcript: Testimony of Professor Stephen Vladeck on possible reforms to the NSA surveillance programs – Oct. 29, 2013

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