Conventional wisdom holds that a debate on National Security Agency surveillance tactics would take place when the Senate takes up the defense authorization bill later this month.
But a growing chorus of reform supporters are raising doubts that it will play out on the defense bill, even as lawmakers in both parties are itching to take on the issue with time running out on the legislative calendar for the year.
"That would be the worst possible place," said Senate Judiciary Chairman Patrick Leahy, D-Vt., one of the leading advocates of reforms that would ban the NSA's bulk collection of phone records.
"Just think of what that bill is," Leahy said of the defense authorization. "Let's have it where we can have a real debate, not on, 'How can we best do everything the administration and the Defense Department tells us to do?' No. We need a real debate."
There's a confluence of reasons the NSA issue could be pushed off — including the fact that some reform advocates say they may need more time to win over support.
"I've been talking to some of the other supporters of the bill about it, and it is an open question right now whether we will try to move forward," said Sen. Richard Blumenthal, D-Conn., adding, "If we have some assurance that there will be other opportunities, waiting may give us more time and enhance opportunities to gain support."
Sen. Ron Wyden, D-Ore., said he is weighing what a Judiciary Committee debate first might do for the reform effort on the floor. "My take is the Judiciary Committee has not had the opportunity to consider this," he said. "What reformers are trying to do is maximize our influence. We are clearly gaining support every single day."
Senate Intelligence Committee leaders Dianne Feinstein, D-Calif., and Saxby Chambliss, R-Ga., passed a bill through their committee that largely protects current NSA practices by adding more accountability and transparency. But neither senator is gunning to bring it up on the defense bill. Chambliss does not want that debate there, and Feinstein said she plans to offer her amendment on the defense authorization only if someone else initiates broader NSA reform.
"If somebody does put something on the defense bill, I will do it," she said.
Leahy is determined to work through his committee process to build support for his bill. "Of course, that's the way it should be," he said.
Sen. Al Franken, D-Minn., another reform champion, is holding a hearing on the issue in the Judiciary Committee's Privacy, Technology, and the Law Subcommittee next week. And Leahy plans to bring in NSA and intelligence leaders for a full committee hearing Nov. 20.
Sen. Dean Heller, R-Nev., is slated to testify in support of reform at next week's hearing, but he's deferring to Leahy's lead.
"We'll see what Leahy thinks--if he wants to bring it up," Heller said. "There's a hearing next week on it, so we are going to have an opportunity to have the discussion. If Leahy wants to take the discussion to the next step, I'll support him on that, but let's see how the hearing goes. I think at that point we'll decide how far we want to take it."
There are other factors pushing against an NSA debate now.
Senate Armed Services Chairman Carl Levin, D-Mich., is asking his colleagues to save the debate for another day.
Another potential hindrance is leadership's schedule. Senate Majority Leader Harry Reid, D-Nev., wants to get the defense authorization done before Thanksgiving. That is an incredibly ambitious time frame, given that other items on the agenda would probably leave it only about a week. There are several defense-related issues expected to be debated when it comes up, including military sexual assaults, Iran sanctions, and the fate of detainees at Guantanamo Bay. If Reid holds to the tight time frame, it might not allow time for a debate on the NSA.
The compelling reason to use the National Defense Authorization Act as a vehicle is that it is coming up soon and is one of the few bills that reliably manages to make its way into law every year. The Senate is out the week after Thanksgiving and plans to be in session for only two weeks in December, so the defense authorization bill could well be the last legislative vehicle for the issue this year.
That lure could still prove irresistible, particularly for those who just want to raise the issue. Several reform advocates, including Sen. Rand Paul, R-Ky., are still weighing whether to ask for a vote on an amendment.
As it stands, senior Senate aides say privately that they do not believe the votes are there to significantly clamp down on the NSA's data-collection practices. They reason that at this stage a more likely outcome would be something along the lines of the Senate Intelligence Committee bill.
And despite the fast-growing popularity of a bill from Rep. Jim Sensenbrenner, R-Wis., to end the NSA's bulk data-collection practices, which has nearly 90 cosponsors, House leaders currently have no plans to take it up.