House-Passed USA Freedom Act: A Dudd-Frank, Not A Glass-Steagall
May 26, 2014 • 9:18AM

By a bi-partisan 303-121 vote, the House of Representatives passed the NSA/White House emasculated version of the USA Freedom Act May 22. The bill, initially intended to end the surveillance state’s unconstitutional bulk collection of Americans’ phone records, was made so toothless that half of its initial 150 co-sponsors withdrew their support.

The NSA/White House changes to the bill were done behind closed doors with the House Republican leadership. “I think its ironic that a bill that was intended to increase transparency was secretly changed,” said Rep. Zoe Lofgren, (D-Calif.), a member of the House Judiciary Committee, which crafted the original legislation. “And it was altered in worrisome ways,” she told the Los Angeles Times.

Maybe the unintentionally most apt assessment after the vote came from Rep. John Conyers (D-Mich.) who was quoted in the Christian Science Monitor. “The critics are correct,” he said, and then added that their “concern is largely theoretical.” Did he mean that just as the banking sector writes and ignores financial law, the surveillance sector dictates and ignores law covering it?

“There was no effort to soften the ban on bulk collection,” lied National Security Council spokeswoman Caitlin Hayden. “Our engagement was to ensure that the language of the USA Freedom Act would not have any unintended consequences for routine individual investigations.”

Not everyone sees it that way. The current bill “maintains and codifies a large-scale, unconstitutional domestic spying program,” said Rep. Justin Amash (R-Mich.), a sponsor of the original bill who voted against the final version.

Just one example of how the bill was gutted: The initial bill said that when an intelligence agency wanted to examine records, it would have to make a “specific selection” defined as a “person, entity, or account.” The surveillance state didn’t like that. So the definition was changed to “a discrete term, such as a term specifically identifying a person, entity, account, address or device”--which opens up vast innumerable possible interpretations. (Emphasis not in the original.)

“Regrettably,” said Lofgren, “we have learned that if we leave any ambiguity in law, the intelligence agency will run a truck right through that ambiguity. And I think that’s why all the civil liberties groups have withdrawn their support from this bill.”

The role of Rep. Jim Sensenbrenner (R-Wisc.) in the backroom deal is open to question. Sensenbrenner was a key author of the original, stronger bill (as well as the earlier Patriot Act, some of whose excesses the USA Freedom Act was meant to address). Yet it was Sensenbrenner who introduced a manager’s amendment with the House Rules Committee May 20 to get consideration of the revised bill on the House floor, instead of the bill passed by the Judiciary and Intelligence Committees. (The bill that passed those committees was already watered down from the original.) Then after the floor vote, Sensenbrenner told NPR, “I wish this bill did more. To my colleagues who lament the changes, I agree with you. The privacy groups who are upset about lost provisions, I share your disappointment.”

A bill similar to the original House bill has been introduced in the Senate by Judiciary Committee Chair Patrick Leahy (D-Vt.). The committee will take up the bill next month. “This is going to be the fight of the summer,” Gabe Rottman, legislative counsel with the American Civil Liberties Union, told The Hill.