Congress Girds For Patriot Act Fight Over NSA Spying


WASHINGTON -- Mike Rogers, director of the National Security Agency, sat down to talk face to face with his fiercest critics in a House office in January.

The visit was more than just a courtesy call. With the legal authority for the NSA's phone data dragnet set to expire June 1, Rogers needs his enemies. Reformers are girding for a fight with congressional leaders, and the looming deadline to reauthorize several Patriot Act provisions gives the former group unprecedented leverage.

This time, "we're in a different moment. ... This is the first reauthorization debate that's happened post-Snowden," said Neema Singh Guliani, a legislative counsel for the American Civil Liberties Union, who was referring to whistleblower Edward Snowden's exposure of the spy agency's mass surveillance in 2013.

But House Speaker John Boehner (R-Ohio) and Senate Majority Leader Mitch McConnell (R-Ky.) are dead-set against major reforms. So the legislative battle lines are drawn -- and no one knows who will win.

Civil liberties advocates in Congress almost certainly don't have the votes to kill the phone surveillance program outright. They may, however, be able to force a significant change supported by the White House: shifting the responsibility to hold onto Americans' phone records from the NSA to the phone companies.

President Barack Obama's administration has already asked for and received new limits from the secret court that permitted the bulk phone data collection in the first place, forcing the NSA to obtain approval from a judge for searches and limiting phone inquiries to two connections away from the initial search term. Congress could enshrine those limits into legislation.

Then there are the other surveillance programs authorized by the Patriot Act's expiring Section 215, which allows the government to seek companies' business records as part of foreign intelligence investigations. Last year, The Wall Street Journal reported that the CIA is building a massive database of international money transfers that includes data on many Americans.

Some reform groups opposed legislation sponsored by Sen. Patrick Leahy (D-Vt.) last year on the grounds that it would not have limited non-telephone spy programs. But Senate Republicans filibustered even that bill's more modest reforms in November, setting a probable ceiling for changes in this Congress.

Since the November vote, Senate Judiciary Chairman Chuck Grassley (R-Iowa) told HuffPost, the issue of NSA reform has been lingering in three corners of Capitol Hill: the House Intelligence Committee, the Senate Intelligence Committee and a joint effort of both chambers’ Judiciary committees. But none of those panels seems particularly likely to do much before the last minute.

“At least what I know about the [joint Judiciary effort], I’m not sure there’s a lot of progress,” said Grassley. “You know decisions are made around here at the midnight hour.”

That sentiment was echoed by members of the Senate Intelligence Committee, who said other issues like cyber and foreign threats have been demanding their attention. Senate Intelligence Chairman Richard Burr (R-N.C.) said he intends to push for a full reauthorization of the Patriot Act.

In the House, advocates of surveillance reform see the June 1 deadline as creating perhaps their best chance for change. But they are well aware of how past pushes have faltered in the face of terrorist fears.

In May 2011, during the last debate over the Patriot Act's controversial surveillance provisions, the law's original author warned of dire consequences if they were not extended. U.S. special forces had just killed Osama bin Laden.

"If Congress fails to reauthorize these laws before they expire, America's national security and that of its citizens will be the most vulnerable in a decade," Rep. Jim Sensenbrenner (R-Wis.) said at the time.

Four years and a raft of Snowden revelations later, Sensenbrenner's position has switched dramatically. He led House efforts to reform surveillance in 2014. This year his office has been circulating a letter from members to Speaker Boehner, warning that they will not vote for a "clean" -- that is, without reforms -- extension of the provision used to authorize bulk phone records collection. More than 60 representatives have signed.

Tea party Republicans elected since 2011 have swelled reformers' ranks, although it is far from clear that their efforts will be enough to overcome staunch resistance from Boehner.

"I'm pretty sure they don't have the votes to do a clean extension," said Rep. Thomas Massie (R-Ky.), a libertarian lawmaker who often spars with his party's leadership.

Massie was one of the four reform-minded House lawmakers who met with Rogers in January. The NSA chief's willingness to talk with Massie, Zoe Lofgren (D-Calif.), Justin Amash (R-Mich.) and Beto O'Rourke (D-Texas) may have signaled just how seriously the Obama administration takes the odds that they can block an extension. Attendees said the meeting did not address specific legislation.

Last year Massie and Lofgren co-sponsored an amendment that would have ended warrantless searches of the content of Americans' communications with foreign NSA targets. The measure passed the House, surprising even Massie, but failed to make it through a House-Senate conference committee.

This year, Lofgren said, House leadership has been mum as to what olive branches they might offer reformers. "There has been no discussion whatsoever," she said. "Here's what I expect: that at the last minute they'll try to ram something through as an emergency, and the question is whether a majority of the House will do that."

NSA reform advocates in the Senate, though, have cautioned their colleagues against that approach.

“I think that would be a very risky strategy,” said Sen. Martin Heinrich (D-N.M.), a member of the Senate Intelligence Committee and outspoken critic of the NSA.

“I don’t think it’s realistic to think that there’s going to be a bill that’s going to have the government holding the metadata," said Grassley. He suggested the most realistic compromise might be to let telecommunications companies keep the data.

Reformers have seen little indication from McConnell that reining in the NSA is even on his radar. The Senate majority leader declined to comment when asked where NSA reform fell on his priority list and referred the question to his staff, who also did not respond to a request for comment.

“I certainly have some challenges with winning support amongst some in the leadership,” said Sen. Ron Wyden (D-Ore.), a reform leader.

Boehner signaled his potential argument for maintaining the phone surveillance program back in January, when the FBI arrested a man for allegedly plotting to bomb the U.S. Capitol.

"We would’ve never known about this had it not been for the FISA program and our ability to collect information [on] people who pose an imminent threat," said Boehner, making a reference to the Foreign Intelligence Surveillance Act. It was unclear whether he was referring specifically to the call tracking program. (A Boehner spokesman did not respond to an email seeking clarification.)

But with the June 1 deadline acting to reformers' advantage, they may be able to push through a tougher measure backed by House Judiciary Chairman Bob Goodlatte (R-Va.).

"Boehner's said he'll be responsive to his chairs. I also think he'll be responsive to other members of the Republican caucus," said the ACLU's Guliani. "It's not a one-person show."

Even when it comes to the panel chairmen, though, it’s unclear under whose jurisdiction NSA reform would fall. The Intelligence committees in both chambers have more direct oversight of the NSA specifically, but the legal angle leaves ample room for the Judiciary panels to weigh in.

“We’re the ones charged with the oversight of the agency and have the most interaction with the NSA,” said Sen. Dan Coats (R-Ind.), a member of the Senate Intelligence Committee. “At least right now, there’s no significant effort underway relative to any major changes.”

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