Why Obama and His NSA Defenders Changed Their Minds

It was a legislative deadline, not a religious conversion, that changed the president’s posture. If Congress doesn’t act, the data collection would end entirely.

House Intelligence Committee Chairman Mike Rogers, R-Mich., with Rep. C.A. Dutch Ruppersberger, D-Md., the ranking member, left, speaks at a press conference about proposed changes to the National Security Agency’s program of sweeping up and storing vast amounts of data on Americans' phone calls, at the Capitol in Washington, Tuesday, March 25, 2014.
AP Photo/J. Scott Applewhite
Brendan Sasso
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Brendan Sasso
March 25, 2014, 5:31 p.m.

It was only months ago that Pres­id­ent Obama, with bi­par­tis­an back­ing from the heads of Con­gress’s In­tel­li­gence com­mit­tees, was in­sist­ing that the Na­tion­al Se­cur­ity Agency’s mass sur­veil­lance pro­gram was key to keep­ing Amer­ic­ans safe from the next ma­jor ter­ror­ist at­tack. They were also dis­miss­ing pri­vacy con­cerns, say­ing the pro­gram was per­fectly leg­al and in­sist­ing the ne­ces­sary safe­guards were already in place.

But now, Obama’s full-speed ahead has turned in­to a hasty re­treat: The pres­id­ent and the NSA’s top sup­port­ers in Con­gress are all push­ing pro­pos­als to end the NSA’s bulk col­lec­tion of phone re­cords. And civil-liber­ties groups — awash in their newly won clout — are de­clar­ing vic­tory. The ques­tion is no longer wheth­er to change the pro­gram, but how dra­mat­ic­ally to over­haul it.

So what changed?

It’s not that Obama and his Hill al­lies sud­denly saw the er­ror of their ways and be­came born-again pri­vacy ad­voc­ates. In­stead, with a crit­ic­al sec­tion of the Pat­ri­ot Act set to ex­pire next year, they real­ized they had no choice but to ne­go­ti­ate.

If Con­gress fails to reau­thor­ize that pro­vi­sion — Sec­tion 215 — by June 1, 2015, then the NSA’s col­lec­tion of U.S. re­cords would have to end en­tirely. And the grow­ing out­rage promp­ted by the Snowden leaks means that the NSA’s sup­port­ers would al­most cer­tainly lose an up-or-down vote on the pro­gram.

Rep. Adam Schiff, a Demo­crat­ic mem­ber of the House In­tel­li­gence Com­mit­tee, said that loom­ing sun­set is what forced law­makers to the bar­gain­ing table. “I think what has changed is the grow­ing real­iz­a­tion that the votes are simply not there for reau­thor­iz­a­tion,” he said in an in­ter­view. “I think that more than any­thing else, that is gal­van­iz­ing us in­to ac­tion.”

Obama and the House In­tel­li­gence Com­mit­tee lead­ers be­lieve their pro­pos­als are now the NSA’s best bet to re­tain some power to mine U.S. phone re­cords for pos­sible ter­ror plots. Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein, an­oth­er lead­ing NSA de­fend­er, also in­dic­ated she is on board with the changes, say­ing the pres­id­ent’s pro­pos­al is a “worthy ef­fort.”

And though the Hill’s NSA al­lies are now pro­pos­ing re­forms to the agency, they don’t seem par­tic­u­larly ex­cited about it.

At a Cap­it­ol Hill press con­fer­ence Tues­day, Rep. Mike Ro­gers, the Re­pub­lic­an chair­man of the House In­tel­li­gence Com­mit­tee, and Rep. Dutch Rup­pers­ber­ger, the pan­el’s top Demo­crat, of­ten soun­ded like they were ar­guing against their own bill that they were un­veil­ing.

“I pas­sion­ately be­lieve this pro­gram has saved Amer­ic­an lives,” Ro­gers said. Rup­pers­ber­ger said if the pro­gram had been in place in 2001, it may have pre­ven­ted the Sept. 11 at­tacks.

Ro­gers re­jec­ted a re­port­er’s sug­ges­tion that the NSA should have nev­er had con­trol of the massive data­base of phone re­cords in the first place. “There was no ab­use, no il­leg­al­ity, no un­con­sti­tu­tion­al­ity,” he said.

But the law­makers ac­know­ledged there is broad “dis­com­fort” with the pro­gram as it is cur­rently struc­tured. “We need to do something about bulk col­lec­tion be­cause of the per­cep­tion of our con­stitu­ents,” Rup­pers­ber­ger ad­mit­ted.

Un­der their le­gis­la­tion, the vast data­base of phone re­cords would stay in the hands of the phone com­pan­ies. The NSA could force the phone com­pan­ies to turn over par­tic­u­lar re­cords, and the For­eign In­tel­li­gence Sur­veil­lance Court would re­view the NSA or­ders after the fact.

Ro­gers and com­pany much prefer their ver­sion to a com­pet­ing pro­pos­al to change the way the gov­ern­ment gath­ers in­form­a­tion. That would be the USA Free­dom Act, a pro­pos­al from Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy and Rep. Jim Sensen­bren­ner that Ro­gers and his ilk fear would go too far in ham­stringing the NSA. The USA Free­dom Act would re­quire the NSA to meet a tough­er stand­ard for the data searches and would lim­it oth­er NSA pro­grams, such as In­ter­net sur­veil­lance of people over­seas.

“In my opin­ion,” Rup­pers­ber­ger said, “the Sensen­bren­ner bill makes our coun­try less safe.”

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