The NSA's Future: A Tale of Two Committees
In both the House and Senate, the Judiciary and Intelligence committees will fight over the survival of surveillance.
Russia granted Edward Snowden a year's worth of refugee status on Thursday, and that may be just enough time to determine whether America's most prominent dissident will achieve his stated goal of dismantling the National Security Agency's "architecture of oppression," as he called it.
A groundswell of congressional support for major new restrictions on the NSA, combined with pressure from the nation's most powerful tech companies, is almost certain to force some of those changes into being. And the battle lines are already being formed between the judiciary and intelligence committees in both the House and Senate. Firebrand defenders of privacy rights on the judiciary committees are seeking to shut down or fundamentally overhaul surveillance, while Intelligence committee members who tend to stand behind the NSA are trying to preserve as much as they can of what they consider an essential program.
The ideas range from the extreme, shutting the telecommunication and Internet monitoring programs down altogether—something almost certain not to happen—to more feasible ideas that might preserve the heart of the program but add more transparency to the process. Such ideas include one that is gaining momentum in both the House and Senate—appointing a privacy advocate to take the other side against government requests for surveillance in the Foreign Intelligence Surveillance Court—declassifying portions of the FISA orders, making them available to more members of Congress, and redesigning the phone-records collection program so that the NSA does not take possession of all the data itself.
NSA advocates counter that the vacuuming up of huge amounts of data is technically necessary, in part because of the nature of the diffuse threat of terror from small "super-empowered" individuals or groups [like the Boston Marathon bombers] and the need to jump out a few "hops" beyond their immediate phone contacts in order to detect all of them; and in part because the data is disposed of by the private sector too soon. And they fear that greater transparency of any kind will compromise the program, revealing sources and methods to potential terrorists and teaching them how to avoid surveillance.
But even the most stalwart defenders agree that some changes are likely to come. Those familiar with the thinking of Rep. Mike Rogers, the powerful chairman of the House Permanent Select Committee on Intelligence, say that some privacy concerns will have to be addressed in order to keep the programs functioning. On the Senate side, Saxby Chambliss of Georgia, the ranking Republican on the Intelligence Committee, told ABC's "This Week" that "I do think we're going to have make some kind of changes to make things more transparent."
Dianne Feinstein, chairwoman of that committee, says that she knows of "no federal program for which audits, congressional oversight and scrutiny by the Justice Department, the intelligence community and the courts are stronger or more sustained." Nonetheless, Feinstein has already proposed several changes in order to assuage critics, including making public every year the number of Americans' phone numbers submitted as queries of the NSA database, along with the number of referrals made to the FBI and warrants to collect the content of any call; publishing the number of times in a year that any company is required to provide data pursuant to FISA's business records provision; making available to all members of Congress all classified FISA court opinions, in a secure location; reducing the NSA's five-year retention of phone records to two or three years; and employing more liberal members of the FISA court.
At the moment, the House debate seems more energized, with the shockingly close defeat of an amendment that would have effectively defunded Section 215 of the Patriot Act, which allows the government to force telecommunications companies such as Verizon and AT&T to turn over business records if they are deemed "relevant" to a terrorism investigation. The failed amendment would have restricted such searches only to those persons already targeted by a federal probe. Now the odd-bedfellow alliance that collected 205 votes for that bill—consisting of libertarian right-wingers like Justin Amash, R-Mich., and liberal Democrats such as John Conyers, the ranking member of the Judiciary Committee and another Michigander -- are already planning for a counterattack by supporters of the program.
The NSA opponents say they know the intelligence committee members, along with the Obama administration (which is already releasing some phone data collection information) will try to grant cosmetic concessions while trying to preserve the heart of the surveillance program. "The intelligence committee is going to be working very hard to head off any substantive change to the programs," says a Democratic congressional aide. "The one thing in our favor is that it's the Judiciary Committee, and not HPSCI, that has primary jurisdiction" over the legality of domestic surveillance.
It is the Intelligence Committee, however, that oversees many national-security programs and prepares the budget for the NSA, among the other intelligence agencies. And while Rogers and Feinstein have both expressed concern about the sweep of the NSA's data vacuuming, both insist it is necessary, both Section 215 and another provision of FISA, section 702, that covers the other recently declassified NSA program called Prism, which is intended to target the Internet traffic of foreign suspects by tapping into U.S-based servers.
On the House side, Rogers released a joint statement with Intelligence Committee ranking member Rep. Dutch Ruppersberger, D-Md., before the vote on the Amash-Conyers amendment that said the data collection program "has been integral in preventing multiple terrorist attacks, including a plot to attack the New York Stock Exchange in 2009." They said the amendment "would have an immediate — and potentially fatal — operational impact and make America more vulnerable to terrorist attacks."
But in the Senate, Judiciary Chairman Pat Leahy, D-Vt., disputed that assessment in hearings held this week. He suggested there was no evidence that the program had prevented acts of terrorism, and "if this program is not effective, it has to end." Leahy said a classified list of uses of the phone record program "does not reflect dozens or even several terrorist plots that Section 215 helped thwart or prevent, let alone 54 as some have suggested."
NSA Director Keith Alexander has contended that the programs conducted allowed U.S. authorities to disrupt 54 "events," 42 of which "involved disrupted plots."
Earlier this week, Leahy proposed a bill -- the "FISA Accountability and Privacy Protection Act of 2013" – that mirrored to some degree the moves made in the House. In part, it too would allow the government to obtain records using Section 215 only when it could establish that the information is relevant to an authorized investigation and somehow linked to a foreign terrorist group or foreign power. Again demonstrating the power of the emerging libertarian-liberal alliance, it was co-sponsored by Sen. Mike Lee, R-Utah.
And so, while leaker Edward Snowden hides in Russia, the debate he started in Washington will unfold in the ensuing months. The outcome will turn in part on the shifts in public opinion. The most recent national survey by the Pew Research Center, conducted July 17-21, found that 50 percent of the public still approve of the government's collection of telephone and Internet data as part of anti-terrorism efforts, while 44 percent disapprove. That was actually a slight increase in favor of the NSA from a month before, when 48 percent approved and 47 percent disapproved.
At the same time, however, Pew found that 56 percent of Americans say that federal courts fail to provide adequate limits on the programs. A new Washington Post-ABC News poll also found dramatically rising concerns about intrusions into privacy related to the data collection.
Many opponents of the NSA's practices, including such prominent names in the House as James Sensenbrenner, R.-Wis., co-author of the Patriot Act, and California Democrat Zoe Lofgren, say they do not want to shut down the surveillance programs, only restrict them to the actual language of the actual FISA act, which requires that the NSA only collect information directly relevant to a national security investigation. If that doesn't happen, they warn, then the battle will be resumed when the statute is "sunsetted" on June 1, 2015.
And they are indicating that they feel the nation has been led astray because too much trust was put in the intelligence committees that were supposed to be overseeing the NSA programs. Says the Democratic congressional aide: "In lot of ways it was an Intelligence Committee-driven solution, with no input from rank-and-file members, that got us into this mess."