House Panels Race Against Each Other to Reform NSA Spying

In an apparent turf war, two House committees have scheduled markups a day apart later this week for competing bills that seek to curtail the government’s spy programs.

WASHINGTON, DC - APRIL 25: Rep. Bob Goodlatte (R-VA) (R), Chairman of the House Judiciary Committee, and Rep. Trey Gowdy (R-SC) speak about immigration during a news conference on Capitol Hill, April 25, 2013 in Washington, DC. The news conference was held to discuss immigration control issues that are before Congress. (Photo by Mark Wilson/Getty Images)
National Journal
Dustin Volz
May 5, 2014, 12:50 p.m.

After months of in­ac­tion, Con­gress is sud­denly bar­rel­ing ahead with pro­posed re­forms to the gov­ern­ment’s sur­veil­lance pro­grams, as two House pan­els duel to get their pre­ferred bills out of com­mit­tee and onto the floor.

The House Ju­di­ciary Com­mit­tee an­nounced Monday that it would bring an amended ver­sion of its stalled anti-NSA bill up for a vote Wed­nes­day. Just hours later, the House In­tel­li­gence Com­mit­tee re­spon­ded, an­noun­cing it had slated a markup of its own anti-spy­ing bill for a closed ses­sion Thursday.

The Ju­di­ciary Com­mit­tee’s USA Free­dom Act would ef­fect­ively end the bulk col­lec­tion of tele­phone metadata. It’s sup­por­ted by pri­vacy and civil-liber­ties groups that see it as the best op­tion to be in­tro­duced in Con­gress thus far, though the amended com­prom­ise re­leased Monday is less sweep­ing than the ori­gin­al.

One tech lob­by­ist noted con­cern that a pro­vi­sion that would have al­lowed com­pan­ies to dis­close to cus­tom­ers more in­form­a­tion about gov­ern­ment data re­quests has been dropped. In ad­di­tion, an ex­tern­al spe­cial ad­voc­ate that would over­see the For­eign In­tel­li­gence Sur­veil­lance Court would no longer be se­lec­ted by the Pri­vacy and Civil Liber­ties Over­sight Board. In­stead, the court’s judges would des­ig­nate five “amicus curi­ae” who pos­sess ap­pro­pri­ate se­cur­ity clear­ances.

“The de­tails still need to be hammered out, but the [amended Free­dom Act] bill is cer­tainly bet­ter than the one that the House In­tel­li­gence Com­mit­tee will be con­sid­er­ing this week, which is a non-starter,” said Laura Murphy, dir­ect­or of the Amer­ic­an Civil Liber­ties Uni­on’s le­gis­lat­ive of­fice in Wash­ing­ton, in a state­ment.

The In­tel­li­gence pan­el’s FISA Trans­par­ency and Mod­ern­iz­a­tion Act would ush­er in some re­forms favored by the same groups but it does not go as far, as it would not­ably al­low the gov­ern­ment to make phone com­pan­ies turn over metadata re­cords even be­fore the For­eign In­tel­li­gence Sur­veil­lance Court is­sued an ap­prov­ing or­der. It is favored more by back­ers of a a strong na­tion­al se­cur­ity ap­par­at­us.

Amid the policy dif­fer­ences, the com­pet­ing bills un­der­score a be­hind-the-scenes jur­is­dic­tion­al feud pit­ting some of the NSA’s most vo­cal crit­ics on the Ju­di­ciary pan­el against some of its long­time de­fend­ers on the In­tel­li­gence Com­mit­tee.

That rup­ture first emerged after Pres­id­ent Obama in March spe­cified how he in­tends to re­form the NSA. Days later, In­tel­li­gence Com­mit­tee Chair­man Mike Ro­gers, a Michigan Re­pub­lic­an, and Dutch Rup­pers­ber­ger, the pan­el’s top Demo­crat, in­tro­duced their bill, which closely ad­heres to Obama’s pro­pos­al. That bill was quickly re­ferred to the In­tel­li­gence pan­el for con­sid­er­a­tion by the House par­lia­ment­ari­an.

But some Ju­di­ciary mem­bers and staffers cried foul, say­ing that mat­ters in­volving the leg­al au­thor­ity of the in­tel­li­gence com­munity should — and nor­mally do — fall un­der their primary jur­is­dic­tion. The move was seen as an in­ten­tion­al at­tempt to cut the largely anti-sur­veil­lance pan­el out of a de­bate over how to re­form the NSA’s pro­gram that col­lects bulk tele­phone data.

Rep. Jer­rold Nadler, a Demo­crat, is­sued a state­ment at the time say­ing that “the House Ju­di­ciary Com­mit­tee must be the primary com­mit­tee at the cen­ter of this re­form.”

An In­tel­li­gence pan­el aide said plans to move ahead with ithe FISA Trans­par­ency bill have been in the works for weeks and that the schedul­ing of the markup was not in dir­ect re­sponse to the Ju­di­ciary’s sched­ule.

Whatever the polit­ics, two bills aim­ing to curb the NSA’s con­tro­ver­sial sur­veil­lance tac­tics are sud­denly ad­van­cing through the House, al­most a year after Ed­ward Snowden’s ini­tial leaks began to sur­face. Pri­vacy ad­voc­ates see the Free­dom Act as a pre­ferred op­tion, but the FISA Trans­par­ency bill more closely aligns with what the pres­id­ent wants. The Free­dom Act cur­rently has 143 co­spon­sors; FISA Trans­par­ency has 11.

Sen. Patrick Leahy has sponsored a com­pan­ion ver­sion of the Free­dom Act in his cham­ber, but it has yet to gain much trac­tion there. No com­pan­ion bill to FISA Trans­par­ency cur­rently ex­ists in the Sen­ate.

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