Surveillance a Divide for Lawmakers

While members of Congress from New Hampshire and Vermont have reacted with uniform concern over revelations of the National Security Agency’s massive sweep of data from American citizens, records show the Twin States’ delegations have diverged when voting on laws that paved the way for the controversial practices.

Vermont’s Congressional delegation has a lengthy history of voting against bills authorizing secret surveillance programs, and says the recent revelations about the NSA accessing phone and Internet records vindicate their objections.

“You can drive a truck through the loopholes, (which) essentially give carte blanche to the agencies to collect information,” Rep. Peter Welch, D-Vt., who has opposed renewals of the Patriot Act and other bills granting the government wide powers to collect citizens’ communications, said in an interview. “It’s overly broad. It sweeps in millions of Americans as potential subjects. Obviously, there’s a potential for abuse. What I’ve seen, over and over, is that if something can be done, it will be done. When you give a blank check to any government agency, it’s going to move to the outer (limit.)”

However, New Hampshire’s delegation has a history of supporting government surveillance bills: Most recently, Sens. Kelly Ayotte and Jeanne Shaheen voted for two laws — a 2011 reauthorization of the Patriot Act and a 2012 bill extending warrantless search practices — that the NSA claims grant authority for the two controversial programs revealed last week.

“We have a responsibility to protect our national security interests while also protecting the privacy rights of our citizens,” said Shaheen, a Democrat who backed the December 2012 bill after voting for failed amendments that would have curtailed the government’s power. “Our laws must reflect the times we live in, both in terms of addressing the ongoing threat of terrorism and protecting privacy in an era of rapid technological advances.”

The Vermont delegation has consistently voted against nearly every major surveillance bill since the Sept. 11, 2011 terrorist attacks, according to records.

“I would say the Vermont delegation has probably as a whole been the strongest state delegation opposing the most egregious aspects of the Patriot Act and the FISA laws,” Vermont ACLU Executive Director Allen Gilbert said.

Sen. Bernie Sanders voted against the Patriot Act in 2001, when he was in the U.S. House , and has since voted against its reauthorization and similar laws.

“As one of the few members of Congress who consistently voted against the Patriot Act, I expressed concern at the time of passage that it gave the government far too much power to spy on innocent United State citizens and provided for very little oversight or disclosure,” Sanders, an Independent, said this week. “Unfortunately, what I said turned out to be exactly true. The United States should not be accumulating phone records on tens of millions of innocent Americans. That is not what democracy is about. That is not what freedom is about. Congress must address this issue and protect the constitutional rights of the American people.”

Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, helped craft the Patriot Act, but pushed to have the law include some judicial oversight and made some provisions of the law expire. Subsequently, citing privacy concerns, Leahy, a former prosecutor in Vermont, has consistently voted against reauthorizing the Patriot Act and other bills extending the government’s surveillance powers.

This week, Leahy announced he is co-sponsoring a bill that would require the attorney general to declassify significant Foreign Intelligence Surveillance Court (FISC) opinions and shed light on the broad legal basis by which the government claims authority to spy on citizens. (Shaheen and Welch, a former defense attorney, said they support that proposal.)

“For years, I have pressed for information about the business records program authorized by the Patriot Act to be declassified,” Leahy said, in a statement. “I am proud to join in this bipartisan legislative effort to increase openness and transparency so that we can shed further light on the business records program authorized by this law.”

Vermont’s delegation also voted against the two most recent intelligence gathering bills, while their counterparts across the Connecticut River supported them.

Both the Patriot Act and the Foreign Intelligence Surveillance Act have been cited by the government in recent days as providing legal underpinnings for the intelligence gathering operations.

Section 215 of the Patriot Act, which allows the government to obtain “tangible things,” such as business records about customers, has been cited as the legal basis for the NSA to collect millions of domestic phone records, including time, duration and numbers of callers, from Verizon and other telecommunications companies.

Meanwhile, Director of National Intelligence James Clapper said a section of the Foreign Intelligence Surveillance Act allowing government to collect online communications of foreigners and foreign groups without a court order gave the NSA authority for PRISM, a system used to collect private communications from at least nine Internet services.

Shaheen’s office stressed that she supported a series of failed amendments that would have required the government to disclose the number of communications collected since the initial bill in 2008, and to disclose FISC court orders, before voting in favor of the Foreign Intelligence Surveillance Act. The amendments were authored by Leahy and persistent NSA critics Ron Wyden, D-Ore., and Jeff Merkley, D-Ore.

Shaheen did not respond to questions about those votes.

“We have a responsibility to protect Americans’ constitutional rights, but let’s not forget that we’re still at war with terrorists. Intelligence officials have said one of these programs, which is reviewed by a special surveillance court, has stopped a terrorist attack against our country,” Ayotte, a Republican and former New Hampshire Attorney General said. “There needs to be rigorous congressional oversight to ensure that we’re not capturing records that we don’t need to protect America, and I will look at efforts to boost transparency so long as they don’t tip off our enemies — that’s the balance we need to strike. But it’s not an accident that administrations from two very different philosophies have supported keeping these programs in place.”

Former New Hampshire U.S. Rep Charlie Bass, a Republican who was unseated in November, also voted to reauthorize both laws.

U.S. Rep. Annie Kuster, D-N.H., who took office in January and has not recorded a vote on any significant surveillance bills, was noncommittal about whether she will seek to curb some of the information collecting.

“We live in troubling times, and we need to strike a balance between protecting our national security and protecting the privacy rights of the American people,” Kuster said. “Gathering intelligence is vital for our nation’s security, but we must do it in a way that’s consistent with our laws and our values. It is our duty as members of Congress to exercise vigorous oversight and to determine whether these surveillance programs violated our nation’s privacy laws or our Constitutional freedoms. Where insufficient oversight exists, I am committed to working with my colleagues in both parties to fully investigate these surveillance programs and make any necessary reforms.”

Mark Davis can be reached at mc or 603-727-3304.