When Congress returns from its Thanksgiving recess, lawmakers will have just over one calendar month—barely two weeks worth of legislative days—to decide the fate of an intelligence program that targets the communications of foreigners but routinely sweeps up private data on American citizens. Yet as the clock ticks down to the program’s Dec. 31 sunset date, congressional debate over the National Security Agency’s expiring surveillance authority has only grown more chaotic.
With Friday’s introduction of bipartisan reform legislation from Sens. Patrick Leahy and Mike Lee, there are now at least five bills percolating on Capitol Hill that aim to address the NSA’s powers under Section 702 of the Foreign Intelligence Surveillance Act. Proposals range from Sen. Tom Cotton’s quixotic campaign for a permanent and reform-free reauthorization of the program, to a push by Sens. Ron Wyden and Rand Paul to severely curtail the FBI and NSA’s ability to access and utilize American communications obtained without a warrant. As deadlock looms, observers are increasingly eyeing a sixth option, in which lawmakers punt the decision on reform into next year. But virtually no one—on either side of the debate—can confidently predict where Congress will end up.
“I’m not sure where it’s going, because you have a polarized Right and Left that are actually unified on putting more controls on this,” said David Shedd, a visiting fellow at the conservative Heritage Foundation and the former acting director of the Defense Intelligence Agency. “I don’t know where the middle is.”
“At this point, looking at the calendar, it’s very hard to see any path forward that works—for anyone,” said Liza Goitein, a scholar at the NYU Law School’s Brennan Center for Justice and a proponent of broad surveillance reforms.
The intelligence community has long warned of dire national security consequences if Section 702 is allowed to sunset. Officials have made repeated trips to Capitol Hill this year to hammer home the program’s key role in disrupting international terror plots. But while designed to target foreigners, the program not infrequently collects the electronic communications of American citizens as well. Under the current rules, those communications can be accessed, without a warrant, by both the NSA and the FBI—a process decried by civil liberties advocates as “backdoor searches.”
When Section 702 was last up for congressional renewal in 2012, lawmakers left the program untouched. But this year’s vote will be the first time Congress has reviewed the program since former NSA contractor Edward Snowden revealed the extent of the U.S. government’s domestic surveillance activities. Add to that new worries on the Right over the “unmasking” of Trump campaign officials—as well as a broader sense that the intelligence community is at odds with the White House—and observers see little chance for Section 702 to escape unscathed this time around.
“I think it’s less about the Edward Snowden era than it is about the last 12, maybe 18 months pre-election,” said Shedd, who supports keeping the program largely as is and laments the “blurring of Section 702 with masking and unmasking.” Shedd singled out for criticism the House Intelligence Committee, where Republican Chairman Devin Nunes has repeatedly taken the intelligence community to task for allegedly unmasking the identity of Trump campaign officials who contacted foreigners.
Bipartisan opposition, particularly in the House, means the likelihood of a clean reauthorization is slim to none. The House Freedom Caucus has staked out its support for surveillance reform in stark terms. Rep. Bob Goodlatte, the chairman of the House Judiciary Committee, has said he sees no path forward for a clean reauthorization no matter how much leadership may want it. “The guys who want nothing done, they’ve talked about attaching it to some must-pass legislation,” said Claude Barfield, a researcher at the conservative American Enterprise Institute. “I think they won’t do that because there’s just too much opposition.”
Late last week, Goodlatte and other top Judiciary officials sent a letter to House Speaker Paul Ryan cautioning him against trying to work around the committee’s USA Liberty Act, which places some restrictions on the FBI’s warrantless access to Americans’ data under Section 702. Leadership staff is reportedly meeting with House Intelligence Committee staff this week to determine whether they’ll get on board with Goodlatte’s bill or craft their own, sixth piece of legislation.
Some reformers blame the continued confusion on the Trump administration’s failure to address bipartisan surveillance concerns in good faith. “I think this time around what we’re seeing is an administration that took a position in July that they wanted a permanent reauthorization of this authority, which was not consistent with the vast majority of members—Democrat or Republican,” said Neema Singh Guliani, legislative counsel with the American Civil Liberties Union. In particular, she said the administration’s decision to backtrack on a promised count of Americans affected by the surveillance made it difficult to determine the best pathway for reform.
Others say Congress also deserves some blame for not addressing Section 702 sooner. Shedd says he met just last week on the surveillance issue with a powerful Senate Republican (he wouldn’t say who), and walked away from the meeting feeling disappointed. “This was a prominent senator whom I thought would’ve known quite a bit about this, but he didn’t,” Shedd said, later adding that he’s “concerned about anything that’s rushed. I’m concerned that it’s coming down to the wire.”
“I think everyone has acknowledged that a straight reauthorization is out of the question,” Goitein said. “But when it comes to the details of the different reform proposals, it’s not clear that any of them has enough support—or at least it’s not clear which of them would have support—to actually get through.”
All that leads observers to wonder whether December will see a slapdash, short-term reauthorization of a couple months approved so that lawmakers can begin an informed debate on the issue in early 2018. Intelligence officials have warned against that possibility, saying it would require them to begin winding down the program and preclude new operations. But so far, both the FBI and NSA appear willing to take that risk rather than back down.
“The FBI and the rest of the [intelligence community] is to some degree banking on Congress’s unwillingness to let Section 702 expire for even a minute,” Goitein said. “It’s a game of chicken … [and] we don’t know who’s going to blink.”
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