Congress Doesn't Seem Totally Sure Who Should Deal With NSA Reform

WASHINGTON -- All eyes are on Congress as the June 1 expiration date looms for the National Security Agency program that sweeps up massive dragnets of Americans' phone data. Senate Majority Leader Mitch McConnell (R-Ky.) is charging forward with a full reauthorization of the Patriot Act program, the first serious push to say anything about the NSA this year.

But no one in Congress seems exactly sure who's primarily responsible for addressing the pending expiration of the NSA program, though most agree that someone, somewhere should do something.

On Tuesday night, McConnell and Senate Intelligence Committee Chairman Richard Burr (R-N.C.) introduced a bill that would entirely reauthorize Section 215 of the Patriot Act, the provision that allows the NSA to collect the communications metadata of Americans. The fast-approaching expiration date is forcing Congress to wrestle with the program’s constitutionality for the first time since former NSA contractor-turned-whistleblower Edward Snowden publicly revealed the program in 2013.

Even as some reform champions have balked at the idea of a full reauthorization, the bill’s co-sponsor said NSA oversight really falls to the House and Senate Judiciary committees.

“This is a straight referral to the Judiciary Committee. ... I believe that all we’re doing is framing what the possibilities are that members should start considering,” Burr said Wednesday, though he added he would prefer reauthorization in full. “This is to help stimulate our members to get them to look at the issue, to understand what this program is and more importantly understand its importance in our overall defense of the country. ... I think it’s safe to say there will probably be a few additional reforms.”

The top Democrat on the Senate Intelligence Committee, though, said their panel was considering its own legislation.

“We are going to do a bill I believe, so it's just the beginning of the process,” Sen. Dianne Feinstein (D-Calif.), vice chairman of the Intelligence Committee, said Wednesday. “Senator Burr and I worked on this; we will sit down. I do not believe that the people on my side would go just for a straight reauthorization, just an extension of the sunset. So we have to come together, and we will.”

Meanwhile, Sen. Chuck Grassley (R-Iowa), chairman of the Judiciary Committee, said he hadn’t pushed forward with a reform proposal because he was waiting to hear from Burr and the Intelligence Committee.

“I’ve got the view of Judiciary Committee members, but I don’t have the input of people on the Intelligence Committee,” Grassley said. “This is something that’s going to take a lot of people to get together to find the proper balance between privacy and national security.”

As both Judiciary Committee chair and a past critic of the NSA’s data collection programs, Grassley is considered a particularly critical player in the battle over reform. But despite his vocal prior concerns, he has yet to give any reform proposal his blessing, even though his staff has been working with the House Judiciary Committee for more than a month to find some way to improve the NSA status quo.

“Our staffs started six weeks ago and, until a week ago, were very much involved,” Grassley said. “But I decided not to go along with the House bill until I had consultation with the Senate Intelligence and the House Intelligence people.”

A House Judiciary Committee aide said Wednesday that a proposal from that panel is pending, but remains a work in progress.

“Senior Republican and Democratic lawmakers on the House Judiciary Committee are continuing to work on strong, bipartisan legislation to reform our nation’s intelligence-gathering programs operated under the Foreign Intelligence Surveillance Act,” the aide said. “Chairman Goodlatte and the other members hoped to introduce the bill earlier this week but are still working to perfect it. The House Judiciary Committee hopes to introduce the bill soon so that it can move forward with legislation that ends the bulk collection program, strengthens protections for Americans’ civil liberties, and protects our national security.”

According to a source familiar with the draft legislation, that proposal isn’t likely to placate civil liberties advocates and NSA critics much more than the full reauthorization does. The proposal, expected to be introduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), would allow the NSA to continue gathering up the communications metadata of Americans using “special selection terms” provided by the agency, according to the source.

Additionally, the legislation would let the government continue to maintain these massive troves of information, as opposed to leaving the data in the hands of telecom companies. Reform advocates have been pushing for the data stores to be taken out of government hands.

The House Judiciary Committee aide declined to comment on the draft proposal, saying it was still changing.

Between the pending House proposal and the Senate introduction of full reauthorization, the worst fears of NSA reform champions appear to be realized -- that Congress, now in the hands of the agency’s Republican defenders, will punt on its chance to overhaul the spy programs.

“I’ll let the sponsors speak for themselves, but when the sponsors come in with a business-as-usual proposal, given all that has gone on in this space -- the evidence that has come out, the recommendations of the president's task force, the instances where the intelligence leadership misrepresented what was going on -- if they’re gonna come in with business as usual, they obviously feel pretty strongly about it,” said Sen. Ron Wyden (D-Ore.), an outspoken NSA critic and a member of the Intelligence Committee. “This idea that, ‘Oh, it’s just a starting point’ ... well, they obviously feel pretty strongly about it.”

Jennifer Bendery contributed reporting.



Edward Snowden