Congress is poised to take steps to rein in the National Security Agency, amid serial leaks about the agency’s surveillance activities that seemed to take lawmakers and sometimes even President Obama by surprise. What's not clear is just how sharply it will yank the NSA's chain.
After rallying behind enhanced powers for US intelligence agencies post-9/11, many lawmakers, citing revelations by NSA defector Edward Snowden, now say that NSA surveillance activities have gone too far.
This week, the leaders of two Senate committees with oversight of surveillance issues laid out different ways forward: One proposes to set up rules to regulate the NSA’s ongoing bulk collection of data; the other would ban such collection altogether.
For Sen. Dianne Feinstein (D) of California, who chairs the Senate Intelligence Committee, the tipping point was revelations last week that the NSA had monitored world leaders, including German Chancellor Angela Merkel, for more than a decade.
“With respect to NSA collection of intelligence on leaders of US allies – including France, Spain, Mexico and Germany – let me state unequivocally: I am totally opposed,” she said in a statement on Oct. 28.
In a closed meeting on Thursday, the Intelligence Committee approved a bill, 11 to 4, that enhances congressional oversight and adds regulations for the NSA’s bulk data program, which Senator Feinstein calls a “vital national security program.”
The measure explicitly authorizes the collection of Americans' phone records in bulk, including phone numbers and times and duration of calls, but it prevents the NSA from collecting the content of communications. The bill's other features include:
- Criminal penalties of as many as 10 years in prison for individuals who access data collected under this program without authorization.
- A requirement that the US attorney general, in consultation with the Director of National Intelligence, report to Congress any intelligence agency violation of law or executive order, as well as how often a search of cellphone records leads to an FBI investigation.
- Authority for the NSA to retain bulk communication records for five years, but no more, and a requirement that the attorney general approve any request to query records that are older than three years.
- Senate confirmation of the NSA director and NSA inspector general.
Opposing the measure, committee members Mark Udall (D) of Colorado and Ron Wyden (D) of Oregon say it merely gives a gloss of legality to the NSA’s domestic-surveillance overreach.
In contrast to Feinstein's measure, Sen. Patrick Leahy (D) of Vermont, chairman of the Senate Judiciary Committee, aims to eliminate the NSA’s authority to collect vast databases on Americans' phone records. (Both measures, though, include a privacy advocate to protect the rights of Americans subjected to surveillance.)
“This summer many Americans learned for the first time that Section 215 of the USA Patriot Act has for years been secretly interpreted to authorize the collection of Americans’ phone records on an unprecedented scale,” Senator Leahy said Oct. 2, when leading off an oversight hearing.
He is joined by Rep. James Sensenbrenner (R) of Wisconsin, a former chairman of the House Judiciary Committee who, along with Leahy, led the effort to pass the USA Patriot Act in 2001. Noting the Snowden disclosures over the past six months, both lawmakers say they have become disillusioned by what they see as NSA overreach and abuses.
“Not only do many of these programs raise serious legal questions, they have come at a high cost to Americans’ privacy rights, business interests, and standing in the international community,” they wrote in a joint op-ed in Politico on Tuesday. “It is time for a new approach.”
The Leahy bill, introduced earlier this week, sets up a rare fight among Democrats over how to proceed, especially if Mr. Snowden continues with his steady drip-drip of disclosures.
Over in the GOP-led House, meanwhile, a push to halt the NSA’s vast collection of phone records has attracted bipartisan support. In a surprise July 24 vote, tea party-backed Rep. Justin Amash (R) of Michigan nearly succeeded in winning approval for a measure to bar funding for NSA phone-record searches unless they are limited to “an individual who is the subject of an investigation.” In the end, 94 conservative Republicans joined 111 mainly liberal Democrats to vote for the measure, which failed 205-217.
Rep. Mike Rogers (R) of Michigan, who chairs the House Intelligence Committee, defends NSA surveillance.
Mr. Obama says a review is under way to address public concerns about the Snowden disclosures, including the claim, which first surfaced in Britain's The Guardian newspaper, that the NSA collects billions of phone records on Americans, including almost 3 billion pieces of intelligence from US computer networks in 30 days this past March.
The debate in Congress over NSA surveillance is starting to resemble the unusually public investigation of US intelligence operations of the post-Watergate era. During some 15 months of congressional investigation in 1975-76, many covert activities came to light, setting off a public furor. These included disclosures that the CIA had opened more than 200,000 pieces of mail and photographed more than 2.7 million envelopes over a 20-year period, that the FBI had conducted hundreds of break-ins aimed at “domestic subversive targets,” and that the NSA had monitored international cable and telephone traffic to identify terrorists and anti-Vietnam War activists.
As a result, Congress for a time intensified its oversight of intelligence agencies. In rare secret sessions, the full Congress voted to block ongoing covert operations in Angola in 1976 and in Nicaragua in 1982. Lawmakers also set up institutional barriers to make it harder to gather intelligence on American citizens, and it reduced the powers of secret intelligence agencies.
Yet by 2004, when the 9/11 commission released its report, the pendulum had swung again. The National Commission on Terrorist Attacks Upon the United States, as it was formally known, concluded that Congress had created institutional obstacles to interagency cooperation, or “stovepipes,” that contributed to US intelligence agencies' inability to “connect the dots” in the run-up to the 9/11 attacks. Its recommendations to strengthen institutional capacity, which Congress largely adopted, were a backpedalling of the 1970s round of congressional reforms.
Those who argue for expanding the powers of US intelligence agencies are echoing the commission's findings during this latest debate. “As Congress has known for years, these NSA intelligence collection programs are vital to our national security and must continue,” said Sen. Saxby Chambliss (R) of Georgia, the top Republican on the Senate Intelligence Committee, on Thursday.