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Intelligence bill bolsters warrantless spying on U.S. citizens

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House of Representatives

IAA 2015 is “one of the most egregious sections of law I’ve encountered during my time as a representative,” wrote Rep. Justin Amash.

WASHINGTON, D.C. –- With virtually no warning or debate, the Intelligence Authorization Act for 2015 (H.R. 4681) was rushed to the House floor and passed, containing a dangerous section which, for the first time, statutorily authorizes spying on U.S. citizens without legal process.

Representative Justin Amash (R-MI) made a hastened effort to draw attention to the disturbing bill, only hours before the vote was scheduled. If not for Amash’s efforts, the bill would have passed on a “voice vote” — meaning no record would be kept of which Congressmen supported it. Rep. Amash explained in a press release on social media:

“When I learned that the Intelligence Authorization Act for FY 2015 was being rushed to the floor for a vote—with little debate and only a voice vote expected (i.e., simply declared “passed” with almost nobody in the room) — I asked my legislative staff to quickly review the bill for unusual language. What they discovered is one of the most egregious sections of law I’ve encountered during my time as a representative: It grants the executive branch virtually unlimited access to the communications of every American.” — Rep. Justin Amash (R-MI)

Section 309 contains the language which civil libertarians found disturbing. Rep. Amash rushed out a “Dear Colleague” letter to every member of congress, urging each to vote “NO” on H.R. 4681.

Dear Colleague:

The intelligence reauthorization bill, which the House will vote on today, contains a troubling new provision that for the first time statutorily authorizes spying on U.S. citizens without legal process.

Last night, the Senate passed an amended version of the intelligence reauthorization bill with a new Sec. 309 — one the House never has considered. Sec. 309 authorizes “the acquisition, retention, and dissemination” of nonpublic communications, including those to and from U.S. persons. The section contemplates that those private communications of Americans, obtained without a court order, may be transferred to domestic law enforcement for criminal investigations.

To be clear, Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of U.S. persons’ private communications obtained without legal process such as a court order or a subpoena. The administration currently may conduct such surveillance under a claim of executive authority, such as E.O. 12333. However, Congress never has approved of using executive authority in that way to capture and use Americans’ private telephone records, electronic communications, or cloud data.

Supporters of Sec. 309 claim that the provision actually reins in the executive branch’s power to retain Americans’ private communications. It is true that Sec. 309 includes exceedingly weak limits on the executive’s retention of Americans’ communications. With many exceptions, the provision requires the executive to dispose of Americans’ communications within five years of acquiring them — although, as HPSCI admits, the executive branch already follows procedures along these lines.

In exchange for the data retention requirements that the executive already follows, Sec. 309 provides a novel statutory basis for the executive branch’s capture and use of Americans’ private communications. The Senate inserted the provision into the intelligence reauthorization bill late last night. That is no way for Congress to address the sensitive, private information of our constituents—especially when we are asked to expand our government’s surveillance powers.

Explained another way, this bill allows information gathered via warrantless federal surveillance to be transferred to local law enforcement for criminal investigations without any type of court order, subpoena or warrant. As pointed out above, this is a drastic change in the nature of the law.

As Police State USA has previously explained, tips gathered from NSA-style spying are considered illegitimate in court. Enforcers had to lie and create a “parallel construction” of the investigation using legitimate means in order to proceed with prosecution. Not even the judges and prosecutors knew about the secret investigations of the defendants.

The Intelligence Authorization Act apparently codifies this practice and makes it the norm in law enforcement.

Unfortunately, on December 10th, 2014, the 47-page intelligence bill passed, 325-100. However, since Rep. Amash requested a roll-call vote, we know the names those who backed it.

ROLL CALL VOTE: H.R. 4681: Intelligence Authorization Act for Fiscal Year 2015

The measure already passed the U.S. Senate by unanimous consent on December 9th, and is now on its way to the White House, where President Obama is expected to sign it.

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