Another 2014 NDAA "Ornament": FISA Disclosures

As we've noted, amendments spanning several issues, including cybersecurity, and anti-terrorism laws, have been put forth as add-ons to the 2014 National Defense Authorization Act. And there are several proposals aiming to undo the Senate Armed Services Committee's more flexible Guantanamo transfer provisions that made it into the bill. But, this year's NDAA debate wouldn't be complete without proposals addressing NSA surveillance programs. Senators Ron Wyden, Mark Udall and Barbara Mikulksi have proposed an amendment doing just that. But, the proposal is on a different plane than the more substantial FISA reform bills put forth, in that it attempts to put into the public debate more facts and details about the FISA surveillance programs as they stand today, rather than codify or alter the programs' current scope. The amendment would, if approved, impose mandatory disclosures to Congress and the public of FISA Court findings of violations of the law, of the breadth of collection of U.S. person information, and of a more complete picture of the government's reliance on FISA for bulk collection. In matters in which the FISC and FISCR determines that surveillance activities have violated the laws or Constitution, the Attorney General would be required to, within 60 days of that determination, disclose it, either by redacting and publishing the documents in a way that the court's finding would be "identif[ied] with particularity." Alternatively, the Attorney General could summarize the decision, though the amendment mandates that any summaries are to be formulated with an emphasis on "extensive disclosure" of the facts and analysis. Another set of disclosures are imposed upon the Director of National Intelligence. Within 90 days of enactment, the DNI would be required to report to Congress:

• Whether the intelligence community has ever collected, or made plans to collect, cell-site location of "a large number of United States persons with no known connection to suspicious activity[.]" That report must include a description of the type and amount of evidence that the DNI believes is "required to permit the collection" for intelligence purposes;
• Whether the intelligence community has ever conducted a "warrantless search of a collection [made under Section 702] of communications collected . . . in an effort to find the communications of a particular United States person (other than a corporation)." If the answer is affirmative, the DNI must report how many such searches were conducted;
• When the United States first began relying upon FISA to support collection of information of "large numbers of United States persons with no known connection to suspicious activity[;]"
• Whether the government's statements to the Supreme Court in Clapper v. Amnesty International were inaccurate, and if so, the way in which they were and how the misstatements have been corrected; and
• A list and description of FISC/FISCR opinions pertaining to collection under FISA Sections 402, 501, or 702 that have found violations of the law, the Constitution or FISA Court orders.

The amendment would require these disclosures to be made available to the public 15 days after the DNI turns them in to Congress, subject to redaction (for which the DNI would be required to provide explanations to the Senate and House intelligence committees). Finally, the amendment would require that the Comptroller General of the United States conduct an assessment of the economic impact of the bulk collection programs, to include an evaluation of the impact these programs have on communications service providers' competitiveness in foreign markets, now that these programs are public. The findings are to be turned in within nine months of the bill's enactment.