President Obama says he’d like to put the US government out of the business of storing Americans’ phone records – though he maintains it’s still necessary to collect those records en masse for anti-terrorism purposes. To make this and other suggested changes to the National Security Agency's surveillance system, he’ll need the help of Congress.
Capitol Hill, however, is as divided on the subject as is the American public. Libertarian-minded conservatives align with liberals in opposing the phone-dragnet program altogether, while other Republicans and Democrats largely support it. Last July, the House fell short of ending the NSA’s bulk collection of phone records, on a close, bipartisan vote.
On the key House and Senate committees responsible for drafting relevant legislation, members of the judiciary panels tend to want wholesale changes, while those dealing with intelligence want only tweaks. But even that is a bit of a generalization, as division also marks the committees. The upshot is that Congress could well have a tough time agreeing on the legislation required to alter the program.
Consider two key changes proposed by the president, both of which would require approval by Congress:
Alternative storage for bulk phone records
President Obama proposes that the government stop holding phone records. In making this recommendation, the president followed the advice of a blue-chip review panel he convened after the furor over massive leaks by former NSA contractor Edward Snowden.
Although the panel found no intentional abuse of the records so far – and the NSA collects data about a phone call but not its content – it warned that the government's storage of the data creates the potential for abuse and public mistrust. Mr. Obama has asked the attorney general to come up with an alternative storage arrangement. The panel suggested either keeping it with the phone companies or entrusting it with a third party.
"While I am encouraged the president is addressing the NSA spying program because of pressure from Congress and the American people, I am disappointed in the details,” said Sen. Rand Paul (R) of Kentucky, in a statement. The senator, a tea party favorite, described Obama’s solution as “the same unconstitutional program with a new configuration.” In the end, Senator Paul told CNN, little changes: Private records will still be collected without a search warrant. He gave Obama an “A for effort” though.
In the House, Rep. Adam Schiff (D) of California, a senior member of the Intelligence Committee, welcomed the changes. But in a statement – and in legislation he introduced – the congressman says the government should obtain an individualized court order to get at phone records “already held by phone companies as part of their normal business practices.” He opposes a third party holding records because it would be “perceived as a subsidiary of the NSA and would do little to build public confidence.”
Conversely, letting the phone companies store the records “may create as many privacy problems as it solves,” said Sen. Chuck Grassley (R) of Iowa, at a Senate Judiciary Committee hearing this week. He pointed to recent examples of hacking at Target and Neiman Marcus.
Rep. Peter King (R) of New York, a strong defender of the NSA's bulk data collection, tweeted, in part: “Pres Obama NSA speech better than expected. Most programs left intact.” Indeed, the need to keep up the mass collection of phone records has staunch defenders on Capitol Hill, including Sen. Dianne Feinstein (D) of California, the chair of the Senate Intelligence Committee. She says that collecting phone records is “important to prevent another [9/11] attack.”
House Speaker John Boehner (R) of Ohio took on a cautionary tone. "When lives are at stake, the president must not allow politics to cloud his judgment," he said, in a written response. "The House will review any legislative reforms proposed by the administration, but we will not erode the operational integrity of critical programs that have helped keep America safe."
An independent voice
The president also seeks to change the workings of the Foreign Intelligence Surveillance Court (FISA), the secret court that provides judicial review of the NSA phone collection program. Obama wants Congress to “authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases” before the court.
This, too, drew criticism from the Hill. Such a “public advocate” can’t be trusted if it even works for the government or is appointed by the government, said Senator Paul. Representative Schiff echoed that an advocate panel must be “truly independent.”
On the other hand, legislation passed by Senator Feinstein’s committee last year gives the FISA court the ability to select a more sympathetic panel – “friends of the court” – to argue for privacy or to provide an independent legal perspective.
In Congress, it seems, there are as many views about how to proceed as there are members.