Can the Senate Crack Down on NSA Spying?

Some reformers say waiting to gather support may be a stronger move.

John Inglis (L), deputy director of the National Security Agency, speaks with committee chairman Senator Patrick Leahy (D-VT) after testifying during a hearing of the Senate Judiciary Committee on Capitol Hill July 31, 2013 in Washington, DC. The committee held the hearing on privacy rights and oversight related to the Foreign Intelligence Surveillance Act amid leaks that the US National Security Agency has engaged in widespread collection of records of domestic phone calls in the United States.
National Journal
Stacy Kaper
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Stacy Kaper
Nov. 7, 2013, 2:06 p.m.

Con­ven­tion­al wis­dom holds that a de­bate on Na­tion­al Se­cur­ity Agency sur­veil­lance tac­tics would take place when the Sen­ate takes up the de­fense au­thor­iz­a­tion bill later this month.

But a grow­ing chor­us of re­form sup­port­ers are rais­ing doubts that it will play out on the de­fense bill, even as law­makers in both parties are itch­ing to take on the is­sue with time run­ning out on the le­gis­lat­ive cal­en­dar for the year.

“That would be the worst pos­sible place,” said Sen­ate Ju­di­ciary Chair­man Patrick Leahy, D-Vt., one of the lead­ing ad­voc­ates of re­forms that would ban the NSA’s bulk col­lec­tion of phone re­cords.

“Just think of what that bill is,” Leahy said of the de­fense au­thor­iz­a­tion. “Let’s have it where we can have a real de­bate, not on, ‘How can we best do everything the ad­min­is­tra­tion and the De­fense De­part­ment tells us to do?’ No. We need a real de­bate.”

There’s a con­flu­ence of reas­ons the NSA is­sue could be pushed off — in­clud­ing the fact that some re­form ad­voc­ates say they may need more time to win over sup­port.

“I’ve been talk­ing to some of the oth­er sup­port­ers of the bill about it, and it is an open ques­tion right now wheth­er we will try to move for­ward,” said Sen. Richard Blu­menth­al, D-Conn., adding, “If we have some as­sur­ance that there will be oth­er op­por­tun­it­ies, wait­ing may give us more time and en­hance op­por­tun­it­ies to gain sup­port.”

Sen. Ron Wyden, D-Ore., said he is weigh­ing what a Ju­di­ciary Com­mit­tee de­bate first might do for the re­form ef­fort on the floor. “My take is the Ju­di­ciary Com­mit­tee has not had the op­por­tun­ity to con­sider this,” he said. “What re­formers are try­ing to do is max­im­ize our in­flu­ence. We are clearly gain­ing sup­port every single day.”

Sen­ate In­tel­li­gence Com­mit­tee lead­ers Di­anne Fein­stein, D-Cal­if., and Saxby Cham­b­liss, R-Ga., passed a bill through their com­mit­tee that largely pro­tects cur­rent NSA prac­tices by adding more ac­count­ab­il­ity and trans­par­ency. But neither sen­at­or is gun­ning to bring it up on the de­fense bill. Cham­b­liss does not want that de­bate there, and Fein­stein said she plans to of­fer her amend­ment on the de­fense au­thor­iz­a­tion only if someone else ini­ti­ates broad­er NSA re­form.

“If some­body does put something on the de­fense bill, I will do it,” she said.

Leahy is de­term­ined to work through his com­mit­tee pro­cess to build sup­port for his bill. “Of course, that’s the way it should be,” he said.

Sen. Al Franken, D-Minn., an­oth­er re­form cham­pi­on, is hold­ing a hear­ing on the is­sue in the Ju­di­ciary Com­mit­tee’s Pri­vacy, Tech­no­logy, and the Law Sub­com­mit­tee next week. And Leahy plans to bring in NSA and in­tel­li­gence lead­ers for a full com­mit­tee hear­ing Nov. 20.

Sen. Dean Heller, R-Nev., is slated to testi­fy in sup­port of re­form at next week’s hear­ing, but he’s de­fer­ring to Leahy’s lead.

“We’ll see what Leahy thinks—if he wants to bring it up,” Heller said. “There’s a hear­ing next week on it, so we are go­ing to have an op­por­tun­ity to have the dis­cus­sion. If Leahy wants to take the dis­cus­sion to the next step, I’ll sup­port him on that, but let’s see how the hear­ing goes. I think at that point we’ll de­cide how far we want to take it.”

There are oth­er factors push­ing against an NSA de­bate now.

Sen­ate Armed Ser­vices Chair­man Carl Lev­in, D-Mich., is ask­ing his col­leagues to save the de­bate for an­oth­er day.

An­oth­er po­ten­tial hindrance is lead­er­ship’s sched­ule. Sen­ate Ma­jor­ity Lead­er Harry Re­id, D-Nev., wants to get the de­fense au­thor­iz­a­tion done be­fore Thanks­giv­ing. That is an in­cred­ibly am­bi­tious time frame, giv­en that oth­er items on the agenda would prob­ably leave it only about a week. There are sev­er­al de­fense-re­lated is­sues ex­pec­ted to be de­bated when it comes up, in­clud­ing mil­it­ary sexu­al as­saults, Ir­an sanc­tions, and the fate of de­tain­ees at Guantanamo Bay. If Re­id holds to the tight time frame, it might not al­low time for a de­bate on the NSA.

The com­pel­ling reas­on to use the Na­tion­al De­fense Au­thor­iz­a­tion Act as a vehicle is that it is com­ing up soon and is one of the few bills that re­li­ably man­ages to make its way in­to law every year. The Sen­ate is out the week after Thanks­giv­ing and plans to be in ses­sion for only two weeks in Decem­ber, so the de­fense au­thor­iz­a­tion bill could well be the last le­gis­lat­ive vehicle for the is­sue this year.

That lure could still prove ir­res­ist­ible, par­tic­u­larly for those who just want to raise the is­sue. Sev­er­al re­form ad­voc­ates, in­clud­ing Sen. Rand Paul, R-Ky., are still weigh­ing wheth­er to ask for a vote on an amend­ment.

As it stands, seni­or Sen­ate aides say privately that they do not be­lieve the votes are there to sig­ni­fic­antly clamp down on the NSA’s data-col­lec­tion prac­tices. They reas­on that at this stage a more likely out­come would be something along the lines of the Sen­ate In­tel­li­gence Com­mit­tee bill.

And des­pite the fast-grow­ing pop­ular­ity of a bill from Rep. Jim Sensen­bren­ner, R-Wis., to end the NSA’s bulk data-col­lec­tion prac­tices, which has nearly 90 co­spon­sors, House lead­ers cur­rently have no plans to take it up.

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