Strange Bedfellows May Mire NSA Spy Limits in Politics
By Chris Strohm – Sep 26, 2013 12:00 AM ET
U.S. intelligence leaders may be able to count on lawmakers’ dysfunction, if not the usual kind, when they appeal to a Senate panel today to preserve National Security Agency spy programs.
Lawmakers are so divided — and not along the partisan lines separating them on most other issues — that they may be unable to agree on limits.
“You’ve got wide splits where you have very liberal Democrats and very conservative Republicans aligning with each other,” said James Lewis, director of the technology and public policy program at the Center for Strategic and International Studies, a Washington nonprofit. “It’s going to make it very hard to get anything serious done.”
Republican Senator Rand Paul of Kentucky, a favorite of Tea Party activists, yesterday flanked Democrats Ron Wyden of Oregon and Mark Udall of Colorado in introducing a bill to bar the NSA from intercepting communications of Americans not suspected of wrongdoing. Colleagues in both parties, meanwhile, have said they oppose any measures they believe would hamper the agency.
Director of National Intelligence James Clapper is scheduled to testify today along with Army General Keith Alexander, head of the NSA, and Deputy Attorney General James Cole before the Senate intelligence committee.
Clapper may face backlash over spy activities exposed in June by former NSA contractor Edward Snowden while cautioning lawmakers against dismantling surveillance programs. Paul said yesterday that Clapper should resign for giving an untruthful answer during testimony in March.
“Wrong decisions” by Congress could damage NSA programs that have thwarted terrorist attacks, Alexander said yesterday at a Washington conference.
Dianne Feinstein of California, chairman of the Senate intelligence committee, said she’s writing a bill with Saxby Chambliss of Georgia, the panel’s top Republican, that will be considered Oct. 1 and will allow for amendments. Neither lawmaker would discuss the details.
Both have said that they would oppose measures that gut NSA programs.
“I am supportive of the United States’ ability to gain intelligence to protect this country,” Feinstein said in an interview. “I don’t want to hurt that system.”
While Feinstein said her bill is “making some substantive changes,” she added that “they may not be enough for some people and I understand that.”
Other lawmakers such as Senator Tom Coburn, an Oklahoma Republican, said NSA powers shouldn’t be curbed.
“I’m an absolute defender of the bulk data collection,” he said in an interview. “It’s saved hundreds and hundreds of people’s lives, not only in this country but in other countries.”
The Wyden-Udall-Paul bill, which is also sponsored by Connecticut Democrat Richard Blumenthal, would prevent the NSA from collecting bulk phone records. It would also close a loophole that lets the government search Americans’ electronic communications without warrants, and create an independent advocate to argue before the Foreign Intelligence Surveillance Court that oversees the programs.
It would permit Apple Inc. (AAPL), Google Inc. (GOOG), Facebook Inc. (FB) and other Internet companies to disclose information about government requests they receive for customer data, including the number and whether the companies complied.
“We need to significantly reform the NSA’s domestic surveillance programs and the court that oversees them,” Udall said in a statement. He said he also wants to “end the government’s dragnet collection of millions of innocent Americans’ phone records.”
Paul said the bulk collection of phone records is unconstitutional.
“You cannot have the constitutionality of our law interpreted in secret,” Paul told reporters during a press conference. “The idea of whether we’re spying on Americans without warrants is a debate we should have in public at the Supreme Court.”
Snowden, who faces U.S. espionage charges and has been granted temporary asylum in Russia, exposed a secret court order compelling Verizon Communications Inc. (VZ) to give the NSA phone records, such as numbers and call durations, on millions of Americans. President Barack Obama’s administration has said the metadata collection involves more phone carriers, without naming them.
The NSA collects the phone records under authority in the USA Patriot Act. Another program exposed by Snowden, known as Prism, monitors e-mail and Internet communications under the Foreign Intelligence Surveillance Act.
The NSA is required to obtain a warrant if the target of surveillance is an American. It illegally intercepted as many as 56,000 electronic communications a year of Americans who weren’t suspected of having terrorist ties before the secret FISA court found the operation unconstitutional in 2011, according to documents declassified Aug. 21.
Collection of the phone records is essential to preventing terrorist attacks, Alexander, the NSA director, said yesterday.
Bulk phone records were used to determine if there was a threat to New York City after the April 15 bombing of the Boston Marathon, and to determine if there were terrorist plots against U.S. embassies abroad several months ago, Alexander said in an interview after his speech.
Alexander and Clapper also are scheduled to testify before the Senate Judiciary Committee on Oct. 2.
The last time Clapper testified publicly before the Senate intelligence panel in March, he gave what he later said was an “untruthful” answer when Wyden asked if the government collects data on millions of Americans.
Clapper answered “no,” followed by: “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”
After Snowden’s disclosure, he told NBC’s Andrea Mitchell in an interview the answer was the “least untruthful.”
The endgame for legislation limiting spy programs isn’t clear although there are few signs Congress this year will alter what’s collected and how it’s used.
Legislative suggestions generating the most support include creating a privacy advocate to argue before the FISA court, requiring more public disclosures about spy operations and having a third party store the phone records rather than the NSA.
Lewis said laws governing U.S. surveillance programs need to be changed.
“Right now there is no replacement,” he said. “It’s going to take awhile for Congress to settle down and get to a more accurate understanding of what’s going on.”
Senator Patrick Leahy, a Vermont Democrat and chairman of the Judiciary Committee, has introduced a measure to bar intelligence agencies from collecting records unless they pertain to an individual under investigation. The bill, S. 1215, is supported by Senator Mike Lee, a Utah Republican.
“We’re still going to have to have our bill” regardless of what the Senate intelligence committee does, Leahy said.
To contact the reporter on this story: Chris Strohm in Washington at firstname.lastname@example.org;
To contact the editor responsible for this story: Bernard Kohn at email@example.com