House Leaders Sideline Anti-NSA Lawmakers

Through a procedural trick, some of the most vocal critics of mass surveillance are not going to get to review a new reform bill.

Activists protest the surveillance of U.S. citizens by the NSA outside the Justice Department where President Barack Obama gave a major speech on reforming the NSA January 17, 2014.
National Journal
Dustin Volz
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Dustin Volz
March 26, 2014, 2:40 p.m.

Some of the most vo­cal crit­ics of the Na­tion­al Se­cur­ity Agency in Con­gress be­lieve they are be­ing in­ten­tion­ally cut out of a loom­ing de­bate on how to re­form the agency’s pro­gram that col­lects bulk tele­phone data.

The House par­lia­ment­ari­an on Wed­nes­day gave primary jur­is­dic­tion of a newly in­tro­duced bill that would re­pur­pose much of the NSA pro­gram to the cham­ber’s In­tel­li­gence Com­mit­tee in­stead of the Ju­di­ciary Com­mit­tee, leav­ing mem­bers and aides of the lat­ter group to cry foul play.

Mat­ters in­volving the over­sight of the in­tel­li­gence com­munity’s broad leg­al au­thor­ity have al­ways fallen to the Ju­di­ciary Com­mit­tee, a staffer said, adding that he could find no in­stance since the ter­ror­ist at­tacks of Sept. 11, 2001, that his com­mit­tee did not get first claim on such le­gis­la­tion.

“Many of our mem­bers are pretty out­raged,” the staffer said. “They’re try­ing to un­der­mine this com­mit­tee’s clear jur­is­dic­tion, as the de­bate we’re hav­ing is on civil liber­ties and con­sti­tu­tion­al rights.” The man­euver, he said, puts NSA re­form in “the hands of its biggest cheer­lead­ers.”

One of those out­raged Ju­di­ciary mem­bers is Rep. Jer­rold Nadler, who quickly is­sued a state­ment say­ing he was “deeply con­cerned that today, for what ap­pears to be the first time ever, a FISA re­form bill has been sent first to the House In­tel­li­gence Com­mit­tee.”

Nadler ad­ded: “The House Ju­di­ciary Com­mit­tee must be the primary Com­mit­tee at the cen­ter of this re­form.”

The bill in ques­tion was in­tro­duced on Tues­day by Reps. Mike Ro­gers, chair of the In­tel­li­gence Com­mit­tee, and Dutch Rup­pers­ber­ger, that pan­el’s top Demo­crat. Both, es­pe­cially Ro­gers, have been adam­ant de­fend­ers of NSA sur­veil­lance since Ed­ward Snowden’s leaks began last June.

But the two have changed their tune fol­low­ing the un­veil­ing of their bill, which came on the heels of a New York Times re­port that Pres­id­ent Obama was en­dors­ing a pro­pos­al that would keep tele­phone data in the hands of phone com­pan­ies and re­quire court ap­prov­al pri­or to every search of a tar­geted phone num­ber.

The bill ad­heres closely to a set of re­forms backed by Pres­id­ent Obama, but would al­low the NSA to force com­pan­ies to turn over par­tic­u­lar re­cords — or­ders the For­eign In­tel­li­gence Sur­veil­lance Court would re­view after the fact.

The co­ales­cing around a gen­er­al frame­work of re­form — and Wed­nes­day’s pro­ced­ur­al coup — does not bode well for the USA Free­dom Act, which was in­tro­duced last year by Rep. Jim Sensen­bren­ner. The meas­ure from the Wis­con­sin Re­pub­lic­an and au­thor of the post-9/11 Pat­ri­ot Act, who sits on the Ju­di­ciary Com­mit­tee and is a former chair of the pan­el, would re­quire a stronger bur­den of proof for data searches and lim­it some of the NSA’s oth­er pro­grams, in­clud­ing sur­veil­lance of over­seas In­ter­net traffic.

The Free­dom Act, which has more than 140 co­spon­sors but has seen little pro­gress lately, had been re­ferred to Ju­di­ciary, lead­ing staffers there to ex­pect the same would be done for Ro­gers’s FISA Trans­par­ency and Mod­ern­iz­a­tion Act. Now at least two Ju­di­ciary aides have ex­pressed con­cern that the com­mit­tee could be cut out of the re­view pro­cess en­tirely, as Ro­gers and Rup­pers­ber­ger may at­tempt to bum-rush their bill to the House floor.

House Par­lia­ment­ari­an Tom Wick­ham and a rep­res­ent­at­ive for Ma­jor­ity Lead­er Eric Can­tor did not re­spond to a re­quest for com­ment. The House In­tel­li­gence Com­mit­tee also did not re­spond to a re­quest for com­ment.

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