The fight over the future of the National Security Agency’s phone record and Internet data collection programs had its first skirmish in the House in July, with a vote that nearly defunded the phone record initiative. And Congress has been building toward a prolonged — and potentially nasty — battle this fall and winter.
New shots could be fired as soon as next week. After some false starts, the Senate Intelligence panel is tentatively scheduled for a closed-door intracommittee showdown over draft legislation sponsored by panel leaders. Also next week, senior members of the House and Senate Judiciary panels are likely to roll out their own joint proposal, one committee aide said.
The usual allegiances and animosities have been shattered on each side: Despite months of being at each others’ throats over the debt limit and a government shutdown, the Obama administration and Democratic and Republican party leaders in both chambers have united on the defensive. They’re trying to hold off a push from a coalition composed of the liberal left and libertarian right to end the phone record collection program entirely.
Frequent allies in the Senate such as Judiciary Chairman Patrick J. Leahy of Vermont and Intelligence Chairwoman Dianne Feinstein of California are at odds on the left, while hawkish House Republicans such as leading Judiciary Committee member Jim Sensenbrenner of Wisconsin and Intelligence Chairman Mike Rogers of Michigan are at odds on the right. With many of their constituents angry about the expansive surveillance, lawmakers have at times gotten personal in the high-stakes dispute.
Advocates of the program to collect phone record metadata such as call location and duration argue that such a program could have prevented the Sept. 11 terrorist attacks and does not gravely threaten privacy thanks to Hill and court oversight. Opponents argue that it represents a vast, unnecessary increase in the amount of information the NSA collects on U.S. citizens and has almost no national security value.
This month, some of the hostilities spilled into public view at a Cato Institute forum. Sensenbrenner, angered over remarks Rogers made in an interview that he believed were aimed at him, told the audience that since the House nearly voted this summer to end funding for the phone record program, Rogers has been in a “great distemper.” And while he had not talked to Rogers about his proposal with top panel Democrat C. A. Dutch Ruppersberger of Maryland for adjusting the phone record program, Sensenbrenner made it clear he expected little from the Intelligence committees.
“I think the bill that Mr. Rogers and Sen. Feinstein are busy working on is aimed to provide a fig leaf for the intelligence community to do what it wants to continue to do,” Sensenbrenner said. “I think he has plucked the leaf off the fig tree far too soon, and it will be far too small of a fig.”
Sensenbrenner has been writing legislation with Leahy that would, among other things, end the phone record program entirely. It would do so by amending the anti-terrorism law known as the Patriot Act — the law the executive branch used to justify the phone records program, and the law that Sensenbrenner, as the chief House sponsor back in 2001, had spent years defending before becoming upset at what he sees as an executive branch distortion of Congress’ intentions.
A separate coalition of senators —featuring Ron Wyden, D-Ore., Rand Paul, R-Ky., Mark Udall, D-Colo., and Richard Blumenthal, D-Conn. — has already introduced a bill (S 1551) to end the phone record program and plan to offer it as an amendment when the Intelligence Committee marks up its draft legislation. At the Cato forum, Wyden touted his proposal as “real reform” and took aim at what he called the “business as usual” contingent of Congress.
“Their objective is to fog up the surveillance debate and convince the Congress and the public that the real problem here is not overly intrusive, constitutionally flawed domestic surveillance,” he said. “The real problem is all that sensationalistic media. Their end game is ensuring that any surveillance reforms are only skin deep.”
Feinstein rejected the criticism.
“I disagree with these characterizations,” she said in a written statement. “The Intelligence Committee has done extensive reviews of NSA operations and believes they are effective and lawful, but can also be improved. We are including significant restrictions to NSA’s intelligence programs to improve privacy protections and to increase transparency. We believe these are serious reforms that will preserve important intelligence collection and protect Americans’ privacy rights.”
Said Susan Phalen, a spokeswoman for Rogers: “As he promised his colleagues during floor debate in July, Chairman Rogers is committed to making substantive reforms to NSA programs that increase transparency and protect the privacy of American citizens, while keeping operational the programs that target foreign adversaries and foreign terrorists.”
Rogers wants to act on his own bill before the end of the year. The question, though, is how long defenders of the NSA programs can hold off those who want to dismantle or severely curtail them. The July vote to end funding for the phone record program fell short, 205-217. Since then, a number of lawmakers who voted “no” have indicated they’d like a second chance.
Parade of Leaks
Time has often been on the side of lawmakers arguing to preserve controversial national security programs, after the initial furor dies down and the political risk of voting against a potentially life-saving initiative becomes more pronounced. But the revelations about NSA surveillance continue to trickle out, thanks to former intelligence contractor Edward Snowden, keeping constituents in a state of elevated dismay.
Laura Murphy, director of the American Civil Liberties Union’s Washington, D.C., office, said some things have changed since Congress enacted the Patriot Act.
“We warned that it was an invitation to abuse,” Murphy said. “Now what we have that’s different is you have the rise of the tea party, some of who ran on constitutional issues. You also have evidence now of the government abusing the powers that we warned them they would cause.”
Obama’s director of national intelligence, James R. Clapper Jr., has publicly said he is resigned to the inevitability of some kind of legislative amendment to the NSA programs. Because the president has the veto pen and powerful allies in House and Senate leaders from both parties, the White House might be able to avert its worst fears about wholesale elimination of certain programs and dramatic limitations on others.
But a powerful groundswell of constituent outrage paired with an array of potent lawmakers standing in opposition means that victory is no sure thing.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.