In Reversal, Members of Congress Call on Obama to Work Around Them

A trio of senators says the administration doesn’t need congressional approval to stop NSA phone spying.

The Obama administration announced this week that it seek to end the National Security Administration's method of collecting citizen's phone data.
National Journal
Sarah Mimms
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Sarah Mimms
March 25, 2014, 12:52 p.m.

Coun­ter­ing the nar­rat­ive on the oth­er side of the Cap­it­ol, three sen­at­ors held an im­promptu press con­fer­ence Tues­day af­ter­noon, call­ing on the Obama ad­min­is­tra­tion to go ahead and work around Con­gress.

Huddled against the south wall of the Sen­ate cham­ber, up­sta­ging Minor­ity Lead­er Mitch Mc­Con­nell’s of­fi­cial weekly press­er just feet away, Sens. Rand Paul, Ron Wyden, and Mark Ud­all offered praise for the ad­min­is­tra­tion’s pro­pos­al to end the Na­tion­al Se­cur­ity Ad­min­is­tra­tion’s prac­tice of col­lect­ing phone data. But all three sen­at­ors tacked on one big ad­dendum: Do it now.

Pres­id­ent Obama, who has said he will in­creas­ingly rely on his ex­ec­ut­ive au­thor­ity this year, much to the chag­rin of con­gres­sion­al Re­pub­lic­ans, said this week that his ad­min­is­tra­tion will have to wait for con­gres­sion­al ap­prov­al be­fore the NSA can cease its data col­lec­tion pro­gram. But Paul, Wyden, and Ud­all ar­gued Tues­day that the pres­id­ent doesn’t need Con­gress in this in­stance.

“They nev­er quite got con­gres­sion­al per­mis­sion to do it in the first place,” Paul said Tues­day, re­fer­ring to the col­lec­tion of mil­lions of Amer­ic­ans’ phone re­cords. “So I think they can stop im­me­di­ately.”

But these sen­at­ors are not tak­ing them­selves en­tirely out of the equa­tion either. All three said Tues­day that they want an NSA change co­di­fied in­to law — pre­sum­ably lest some oth­er pres­id­ent re­in­state the pro­gram, or Obama change his mind — but get­ting le­gis­la­tion through Con­gress takes too much time and can be done after the fact.

“It may take a little time to get the le­gis­la­tion passed, but they can stop right now — right now,” Wyden said.

In the in­ter­im, the sen­at­ors said  they will “in­sist” that the NSA seek war­rants to ac­cess Amer­ic­ans’ phone re­cords, rather than pur­su­ing blind col­lec­tion, while leav­ing an ex­emp­tion for emer­gency situ­ations.

“There’s emer­gency au­thor­ity which en­sures that in the peri­od between now and the time we try to get the le­gis­la­tion passed, we’re pro­tect­ing the con­sti­tu­tion­al rights of the Amer­ic­an people, while at the same time deal­ing with a very real threat,” Wyden said.

Paul, long a pro­ponent of the Fourth Amend­ment, ar­gued that the Su­preme Court may also have to weigh in on the is­sue, a pro­cess that could take even longer.

“If you no­tice, most of what they say — and this could be the White House or any de­fend­ers of this pro­gram — they will say, ‘Da da da da da, we have these pri­vacy con­trols, we’re go­ing to do da da da da da,’ but re­cords are not pro­tec­ted by the Fourth Amend­ment,” he said. “This is still a big ques­tion. I think it will still have to be de­cided by the Su­preme Court.”

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