Hill Intel Leaders Downplay Need for NSA Reforms

Lawmakers atop the Intelligence committees are resisting pressure from liberals and conservatives alike.

WASHINGTON, DC - SEPTEMBER 26: Committee chairman Sen. Dianne Feinstein (D-CA) (C), ranking member Sen. Saxby Chambliss (R-GA) (R) and Sen. John Rockefeller (D-WV) (L) listen during a hearing before the Senate (Select) Intelligence Committee September 26,2 103 on Capitol Hill in Washington, DC. The hearing was focused on the FISA (Foreign Intelligence Surveillance Act) Legislation.
National Journal
Stacy Kaper Michael Catalini
Jan. 15, 2014, 3:22 p.m.

Des­pite a push from Demo­crat­ic and Re­pub­lic­an law­makers for new re­forms of the in­tel­li­gence com­munity ahead of Pres­id­ent Obama’s highly an­ti­cip­ated speech Fri­day, In­tel­li­gence Com­mit­tee lead­ers in both the House and Sen­ate are sig­nal­ing little in­terest in such le­gis­la­tion.

Sen­ate In­tel­li­gence Chair­wo­man Di­anne Fein­stein and rank­ing mem­ber Saxby Cham­b­liss told re­port­ers sep­ar­ately Wed­nes­day that they are not look­ing for any ma­jor le­gis­lat­ive ini­ti­at­ives on the Na­tion­al Se­cur­ity Agency from the com­mand­er in chief.

Cham­b­liss, a Geor­gia Re­pub­lic­an, flat out said there were no spe­cif­ic le­gis­lat­ive re­forms he wanted to hear from Obama.

Fein­stein, a Cali­for­nia Demo­crat, ar­gued Obama already has power to make the changes he de­sires. “He can do this, most of it, with his ex­ec­ut­ive au­thor­ity,” she said.

In the House, the In­tel­li­gence Com­mit­tee last fall had planned to mark up a bill sim­il­ar to a Sen­ate In­tel­li­gence Com­mit­tee bill that would largely pro­tect the status quo and add ad­di­tion­al trans­par­ency to na­tion­al in­tel­li­gence pro­grams. But the bill was ab­ruptly pulled by Speak­er John Boehner, who had been ex­pec­ted to move the le­gis­la­tion dir­ectly to the floor.

Much like the Sen­ate, the House has been con­flic­ted on this is­sue, with Ju­di­ciary Com­mit­tee mem­bers such as Rep. Jim Sensen­bren­ner, R-Wis., fa­vor­ing re­forms that would end the NSA’s bulk data col­lec­tion while In­tel­li­gence lead­ers sought to pro­tect the agency.

While the In­tel­li­gence Com­mit­tee lead­ers on both sides of the Cap­it­ol show little in­dic­a­tion they will push for sweep­ing le­gis­lat­ive re­forms, fis­sures ap­pear to be widen­ing between the ad­min­is­tra­tion and co­ali­tions of pro­gress­ive and con­ser­vat­ive law­makers over wheth­er and how to re­form the in­tel­li­gence com­munity.

“All the NSA over­reach has struck a chord with people on the left and right,” said Rep. Peter Welch, D-Vt., a coau­thor of a bill in­tro­duced this week that would re­quire in­tel­li­gence agen­cies to dis­close their top-line spend­ing fig­ure. Co­spon­sors in­clude con­ser­vat­ive Reps. Justin Amash of Michigan, Jim Jordan of Ohio, and Cyn­thia Lum­mis of Wyom­ing.

Get­ting the le­gis­la­tion to the floor would re­quire back­ing from the lead­er­ship, something law­makers are not bet­ting on at this stage. Welch said his strategy is to get as many co­spon­sors as pos­sible. He wouldn’t rule out a dis­charge pe­ti­tion as a means to leapfrog lead­er­ship to get the meas­ure to the floor either.

And in the Sen­ate, Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy, D-Vt., has been lead­ing ef­forts for re­form, even team­ing up with con­ser­vat­ive tea-party lead­er Mike Lee of Utah on a bill. In an­oth­er sign of the some­times odd-couple pair­ings the is­sue en­genders, Sen. Ted Cruz picked up a line of ques­tion­ing be­gun by in­de­pend­ent, pro­gress­ive Sen. Bernie Sanders of Ver­mont.

“A couple of weeks ago Sen­at­or Sanders wrote a let­ter to the NSA ask­ing if the NSA has ‘spied on or is the NSA cur­rently spy­ing on mem­bers of Con­gress or oth­er elec­ted of­fi­cials,’ and the NSA’s re­sponse to that was that mem­bers of Con­gress have the same pri­vacy pro­tec­tions as all U.S. per­sons, which cer­tainly sug­gests the an­swer to that ques­tion was in the af­firm­at­ive,” Cruz said dur­ing ques­tion­ing at a hear­ing.

Still, it’s un­likely any re­form bill would make it to the floor of the Sen­ate, a seni­or Demo­crat­ic aide said.

Both Sen­ate In­tel­li­gence lead­ers laid out a strong de­fense for pro­tect­ing the guts of the ex­ist­ing mass-sur­veil­lance pro­gram, which al­lows col­lec­tion of mil­lions of Amer­ic­ans’ phone and In­ter­net re­cords, even when they are un­der no sus­pi­cion of ter­ror­ism ties.

“We be­lieve — the In­tel­li­gence Com­mit­tee — that the pro­gram is leg­al. I’m hope­ful that the pro­gram will be sus­tained by the pres­id­ent — maybe in a slightly dif­fer­ent form,” Fein­stein said.

Cham­b­liss ar­gued he hopes to hear the pres­id­ent lay out the case for the cur­rent sys­tem, run through the For­eign In­tel­li­gence Sur­veil­lance Court.

“I’d like for him to say that 215 and 702 are very valu­able pro­grams,” he said re­fer­ring to sec­tions in the law that have been used to jus­ti­fy and al­low mass sur­veil­lance. “They have con­trib­uted to the na­tion­al se­cur­ity in­terests of the United States in a very pos­it­ive way and while we may need to make it a little bit more trans­par­ent, that we need to util­ize it more and more.”

Fein­stein ar­gued — as she had since the is­sue first made waves with rev­el­a­tions from NSA leak­er Ed­ward Snowden last year — that the cur­rent open-ended sys­tem al­lows in­vest­ig­at­ors to thwart ter­ror­ism plots and needs to be sus­tained.

“Here’s the prob­lem, the prob­lem is to keep the in­stant­an­eous nature of the pro­gram,” she said. “Be­cause you don’t know at what point in plot-plan­ning you learn of the plot. And the whole point of this pro­gram is to pre­vent something from hap­pen­ing.”

She ar­gued that ideas for nar­row­ing the sur­veil­lance to sus­pec­ted tar­gets misses the point and used the Bo­ston Mara­thon bomb­ing as an ex­ample.

“As with Bo­ston, emer­gency powers were used, fol­low­ing Bo­ston, to get tele­phony in­form­a­tion. But that was after the fact,” she said. “These pro­grams are all de­signed to pre­vent it from hap­pen­ing, to dis­rupt the plot, to get to them be­fore they do it, and to be able to make a case to ar­rest them and to make a case against them. Now ideally that means get­ting to the plot early on, so that you can be­gin to de­vel­op the evid­ence so people will be con­victed or plead guilty.”

The bill passed by the Sen­ate In­tel­li­gence Com­mit­tee last year would pro­tect the status quo, but add ad­di­tion­al trans­par­ency and ac­count­ab­il­ity meas­ures to re­spond to crit­ics.

Fein­stein ar­gued Obama could em­brace the bill’s au­thor­iz­a­tion for the FISA Court to des­ig­nate an out­side amicus curi­ae or “friends of the court” to as­sist in in­ter­pret­a­tions of the law and fur­ther tinker around the edges to put subtle lim­its on the in­form­a­tion col­lec­ted.

“The amicus is part of our FISA bill, so it will be in­ter­est­ing to see if the pres­id­ent does something there,” she said. “My own view is there are things that could be done. We put to­geth­er a bi­par­tis­an bill.”¦ But the pres­id­ent could cer­tainly “¦ shorten the time the ma­ter­i­al is held, I think without ma­ter­i­al harm to the pro­gram.”

Fein­stein ad­ded that Obama could also “shorten the hops” or lim­it the de­grees of sep­ar­a­tion between a phone num­ber sus­pec­ted to be re­lated to ter­ror­ism and the web of in­ter­con­nec­ted phone num­bers that are quer­ied.

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