House Panels Sell Alternate Realities on NSA Reform

Ahead of dueling votes, Intelligence Committee leaders insist a deal everyone can agree on is taking shape. The Judiciary Committee is skeptical.

Rep. Jim Sensenbrenner, R-Wis., will introduce the USA Freedom Act, designed to curb NSA surveillance, next week.
National Journal
Dustin Volz
May 7, 2014, 7:08 a.m.

Two House com­mit­tees will vote this week on their own ver­sions of le­gis­la­tion that cur­tails the gov­ern­ment’s sur­veil­lance powers, mark­ing the first ser­i­ous move­ment on spy re­form from Con­gress in months.

But du­el­ing nar­rat­ives have also emerged from the House Ju­di­ciary and In­tel­li­gence com­mit­tees along­side the com­pet­ing bills. These un­der­score the di­vide between law­makers more sup­port­ive of broad sur­veil­lance re­form and those more con­cerned that na­tion­al se­cur­ity could be un­der­mined.

Ac­cord­ing to the In­tel­li­gence pan­el, the two bills are quickly unit­ing on a happy middle ground, one that will make Speak­er John Boehner’s choice as to which bill to bring to the floor a re­l­at­ively easy one. The Ju­di­ciary pan­el’s newly amended USA Free­dom Act has swung sharply in a dir­ec­tion “where we and the White House are on this,” an In­tel­li­gence staffer said.

“I really do feel we’re very close to a deal that every­body will feel com­fort­able with,” In­tel­li­gence Chair­man Mike Ro­gers said late Tues­day. “The bills have moved dra­mat­ic­ally.”

But while In­tel­li­gence law­makers and staffers are in­sist­ing a grand con­sensus may be emer­ging, aides to Ju­di­ciary mem­bers struck a dif­fer­ent chord. Mul­tiple Ju­di­ciary staffers ac­cused the rival pan­el of try­ing to spin a co­pacet­ic nar­rat­ive to dis­tract from the real­ity that the two bills are still markedly dif­fer­ent.

“If they were so close, why would there be com­pet­ing bills?” an aide to a Ju­di­ciary Demo­crat asked.

An aide to a Ju­di­ciary Re­pub­lic­an ad­ded: “We can say with a straight face that our bill ends bulk col­lec­tion. House In­tel can­not.”

Com­plic­at­ing mat­ters fur­ther, the In­tel­li­gence pan­el has sched­uled a vote on the Free­dom Act on Thursday after it votes on its own bill, a day after Ju­di­ciary’s vote.

To be sure, the bills offered by both pan­els do share some com­mon ground, and the latest ver­sion of the Free­dom Act does align it more closely with what the In­tel­li­gence pan­el and Pres­id­ent Obama want. (The pro­posed Free­dom Act changes have led some in the pri­vacy com­munity to newly christen it the “Free­dumb Act.”)

Both meas­ures would move the stor­age of phone metadata — the num­bers and call dur­a­tions but not the con­tents of a call — out of the gov­ern­ment and in­to the hands of the phone com­pan­ies. Both would also gen­er­ally cre­ate more trans­par­ency and ac­count­ab­il­ity checks on the For­eign In­tel­li­gence Sur­veil­lance Court, which gives the Na­tion­al Se­cur­ity Agency its au­thor­ity to con­duct data stor­age.

But sev­er­al key dif­fer­ences re­main. For one, the In­tel­li­gence Com­mit­tee’s FISA Trans­par­ency and Mod­ern­iz­a­tion Act would al­low the NSA to seize phone re­cords without pri­or ap­prov­al from the FISA Court — something that even Obama’s pro­posed re­forms do not seek. The Free­dom Act would re­quire court ap­prov­al be­fore each search of phone re­cords.

And the Free­dom Act more strictly defines who can be tar­geted un­der “bulk col­lec­tion,” though am­bi­gu­ity in the lan­guage has pri­vacy ad­voc­ates won­der­ing how cer­tain defin­i­tions could be in­ter­preted. It also would only al­low data col­lec­tion for coun­terter­ror­ism pur­poses, while the In­tel­li­gence bill would ex­pand that cur­rent stand­ard to in­clude oth­er kinds of na­tion­al se­cur­ity threats, such as pro­lif­er­a­tion of weapons of mass de­struc­tion.

What’s more, amend­ments likely to be offered dur­ing the Free­dom Act’s Wed­nes­day markup could widen the gap between the two bills even more. One plan would al­low tech com­pan­ies to dis­close more in­form­a­tion about the data re­quests they re­ceive from the gov­ern­ment. Demo­crat­ic Reps. Su­z­an Del­Bene and Zoe Lof­gren, as well as Wis­con­sin Re­pub­lic­an and Free­dom Act au­thor Jim Sensen­bren­ner, are in­ter­ested in adding a trans­par­ency pro­vi­sion that was in the ori­gin­al bill’s lan­guage.

Over­all, pri­vacy and civil-liber­ties groups still fa­vor the Free­dom Act, even in its cur­rent state.

“The de­tails still need to be hammered out, but the bill is cer­tainly bet­ter than the one that the House In­tel­li­gence Com­mit­tee will be con­sid­er­ing this week, which is a non­starter,” Laura Murphy, dir­ect­or of the Amer­ic­an Civil Liber­ties Uni­on’s le­gis­lat­ive of­fice in Wash­ing­ton, said in a state­ment. “The Amer­ic­an people must in­sist that Con­gress vote on real re­form, not win­dow dress­ing.”

The un­usu­al situ­ation un­fold­ing this week — two com­mit­tees vot­ing on com­pet­ing bills just a day apart — stems from a ter­rit­ori­al feud that began in March, when House lead­er­ship gave Ro­gers’s com­mit­tee primary jur­is­dic­tion over his bill in­stead of the Ju­di­ciary pan­el, which said it nor­mally calls the shots on mat­ters deal­ing with the in­tel­li­gence com­munity’s leg­al au­thor­ity. One Ju­di­ciary staffer said at the time that its mem­bers were “out­raged.”

The House In­tel­li­gence lead­ers may want to un­der­sell le­gis­lat­ive dif­fer­ences in the bills be­cause of their repu­ta­tion as long-stand­ing de­fend­ers of the NSA. Chair­man Ro­gers said he has been in talks with Ju­di­ciary Chair­man Bob Good­latte, Sensen­bren­ner, and the White House about mov­ing for­ward with one bill that “rep­res­ents every­one’s con­cerns.”

“Our bill as in­tro­duced already strengthens pri­vacy pro­tec­tions and im­proves trans­par­ency while main­tain­ing an im­port­ant cap­ab­il­ity needed to keep our coun­try, and our al­lies, safe,” Rep. Dutch Rup­pers­ber­ger, the In­tel­li­gence pan­el’s top Demo­crat, said in a state­ment. “After con­tinu­ing our close con­sulta­tions with the ad­min­is­tra­tion, pri­vacy groups, in­dustry lead­ers, and our col­leagues in the House and Sen­ate, I am con­fid­ent that our mark-up will ad­vance these goals even fur­ther.”

House lead­er­ship, for the time be­ing, is stay­ing mum on the byz­antine battle. “At this point, we’re just mon­it­or­ing the com­mit­tee pro­cess,” a spokes­man for Boehner said.

The Ju­di­ciary’s Free­dom Act cur­rently boasts 143 co­spon­sors and was in­tro­duced in Oc­to­ber. The FISA Trans­par­ency and Mod­ern­iz­a­tion Act was in­tro­duced by Ro­gers and Rup­pers­ber­ger in March and has 13 co­spon­sors.

Brendan Sasso contributed to this article.
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