Rank-and-file lawmakers caution that there's no pressure to act coming from home. Dueling dilemmas for NSA reform

Congress is awash in ideas for revamping the government surveillance programs exposed by Edward Snowden.

Although behind-the-scene talks have picked up in recent days, lawmakers’ appetite, the path and timing for reform remains far from clear.


In the House, the approach du jour that so far has gained the most support would involve killing the National Security Agency’s bulk collection program for Americans’ telephone records. While that sure sounds satisfying to libertarian champions like Rep. Justin Amash (R-Mich.) and liberal lions like Rep. John Conyers (D-Mich.), it’s not exactly what the White House or key House and Senate committee leaders most loyal to the NSA have in mind when they talk about intelligence reforms.

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Broader prospects for actually overhauling the country’s post- Sept. 11 security programs also face another big hurdle: no major force pushing for the changes. Sure, there’s a June 2015 deadline before the expiration of the NSA’s legal authority under Section 215 of the PATRIOT Act. And President Barack Obama has detailed his reasons for addressing the issue after months of Snowden-inspired revelations.

But rank-and-file lawmakers — already struggling to balance the dueling demands of protecting the country while safeguarding privacy — caution that there’s no serious pressure coming from home to support the kinds of changes Obama wants. In fact, many members of the House are quietly hoping that their leadership drops this gambit.

Key industries caught in the NSA dragnet also are holding fire, including the Silicon Valley-based Internet companies like Google and Facebook who have more at stake protecting their brand name beyond America’s borders and the major telephone companies that oppose being handed the reins on such a controversial program.

“I don’t think it goes anywhere,” said former Rep. Pete Hoekstra, a Michigan Republican who chaired the House Intelligence Committee. “There’s not a huge constituency that’s demanding this get done.”

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“Probably a little too divisive,” added Sen. Jeff Flake (R-Ariz.), a member of the Judiciary Committee. The panel presents yet another obstacle as the panel’s Democratic chairman, Sen. Patrick Leahy (D-Vt.), fights a turf war over NSA reform with his Intelligence Committee counterpart, Sen. Dianne Feinstein (D-Calif.).

In the House, Speaker John Boehner (R-Ohio) and Majority Leader Eric Cantor (R-Va.) have their own dilemma: They need to move an NSA bill, and quickly. Otherwise, concerns about government surveillance threaten to bring down key bills like the National Defense Authorization Act, the Defense appropriations bill and even the financial services spending bill, which funds the FISA courts. Absent an NSA overhaul, those bills become targets for loads of amendments.

“It’d be risky in that regard,” said House Homeland Security Chairman Mike McCaul (R-Texas).

So the hope is that voting on an NSA bill will soften that pocket of opposition.

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But Republican leadership is also unsure House Intelligence Chairman Mike Rogers (R-Mich.) can find anything that would satisfy libertarian-fueled concerns while still protecting important elements of the surveillance programs designed to protect Americans.

“If it’s a rewording of current law, it doesn’t pass,” a senior GOP aide said. “Rogers needs to figure out if there’s anything that can assuage their concerns. He has to give something — something he doesn’t like — in order to not lose everything.”

Amash narrowly lost last summer on the floor on his amendment to the Defense Department’s spending bill that would have defunded the NSA program. In a recent interview, Amash said that he can win if he gets another chance for a vote. That would be a headache for Republican leadership.

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“We have a majority,” he said. “I think we have everyone who supported before, plus dozens of others who have heard about it back home from their constituents.”

Legislation seeking the biggest post-Snowden NSA reforms got a boost last month when the White House and the leaders of the House Intelligence Committee endorsed separate proposals sending the bulk-collection program to the private telephone companies. From his hideaway in Russia, Snowden called it a “turning point” in the debate, though the bills still differ on a key point: when a federal court can weigh in on allowing NSA officials to tap into the data.

Yet despite the momentum that came with the House bill introduction and details of Obama’s plan, both remain a long way from passage.

Rogers killed some of the steam by announcing the very same week that he is retiring after this Congress to take a talk radio gig, House insiders say. His proposal also faces a challenge in the House Judiciary Committee, which shares jurisdiction and saw 24 of its 39 members vote on the floor last year for Amash’s amendment to starve the NSA program’s funding.

“The Judiciary Committee has primary jurisdiction over Section 215 and we’re working on our own legislation. That’s all I’m going to say,” the panel’s Chairman Bob Goodlatte (R-Va.) said last week.

Senior GOP lawmakers and aides say Rogers will keep working to meet the Judiciary panel’s needs, with a goal of producing a joint product by the end of April. But if that doesn’t work, Rogers could move ahead with his own markup later this spring with an aim to deliver a bill to GOP leaders for floor debate by early summer.

Cantor’s operation is also maneuvering behind the scenes to limit Judiciary’s jurisdiction, which would help ease the process, senior Republicans say.

But on Rogers’s committee, Republicans who signed on as co-sponsors are hardly emphatic in their support for making changes to the NSA program.

“I don’t think the reforms are necessary, but I think it can save the program,” said Rep. Peter King (R-N.Y.).

Rep. Mac Thornberry (R-Texas), an Intelligence Committee member next in line to chair the Armed Services Committee, said he had “mixed feelings” about making changes to the NSA operation but endorsed the debate if it meant getting to other defense issues stymied by the controversy, like cybersecurity.

“I think it’s important to have this out there, have it aired and then you can talk about other things,” he said.

No friend of the Obama White House, Rep. Michele Bachmann (R-Minn.), an Intelligence Committee member, said the administration’s backing of the House bill could make the difference in passing NSA reforms. “There really isn’t an obvious conclusion at this point if it goes on the floor,” she said.

Asked about Amash and other NSA critics who are aiming to kill the program, Bachmann replied, “I think really the greater determiner will be the president more than anything. If he gets behind this bill, his party will get behind this bill, and then we’ll have a bill.”

Staff-level talks between Obama aides and the Judiciary Committee continued Tuesday “to try to work something out,” said Rep. Jim Sensenbrenner, an author of the original PATRIOT Act who wants to end the NSA’s bulk collection program. The Wisconsin Republican, a former Judiciary chairman, said the White House needs his panel’s support because the Intelligence Committee-drafted bill lacks majority support in the House.

“The White House really can’t play a stall game on this,” Sensenbrenner said in an interview. “If they play a stall game, they’ll end up with nothing.”

Citing Obama’s statement last month in support of NSA reforms, a White House spokeswoman said administration officials are “in touch with key congressional leadership — including from the Judiciary and Intelligence committees — and we are committed to working with them to see legislation passed as soon as possible.”

House Democrats on the Intelligence Committee said the push for NSA legislative reforms would help solidify intelligence policy beyond the Obama administration. Rep. Dutch Ruppersberger (D-Md.), the panel’s ranking member, predicted the proposal he released with Rogers “will continue to pick up support.”

But others acknowledged there’s a heavy political lift ahead that has kept this issue off the radar of both Boehner and Senate Majority Leader Harry Reid (D-Nev.).

“I think it’s not on that list and not high on the leadership list because it’s not the kind of issue that’s going to move voters in one direction or another, because it really is a bipartisan issue that cuts across very different lines than most,” said Rep. Adam Schiff (D-Calif.).

“The challenge,” Schiff added, “is between those on either end of the spectrum who will want to add a poison pill pushing it in one direction or the other. Is there a way to navigate it through the process? I think at the member level, there’s a desire to take this up and move on the issue. At the leadership level, I think they recognize what a difficult challenge this is. They haven’t figured out whether they want to use the political muscle to make it happen.”

Several telecommunications industry officials said they were looking beyond the House’s gridlock to the Senate, where a key question centers on whether any NSA reform deal can come together that’s capable of surviving a filibuster from Sen. Rand Paul (R-Ky.) and other critics who would prefer to just shut the program down.

The Senate Intelligence Committee last year advanced a bill that would maintain the NSA program, while adding new privacy safeguards. With the latest House Intelligence Committee proposal, all Feinstein has agreed to do is hold a hearing on the legislation, though she said she first wants to see bill text from the White House, indicating what it wants to do on the issue.

“It’s very important since they’ve done the negotiating on this that they include language,” the California Democrat said in an interview. She added that she supports the White House’s call to move the data — which covers phone numbers and durations of calls, but not content — to the telephone companies, with a requirement that the government obtains a court order before it conducts any searches.

But she said she also has questions about how the new system would work, including whether to “provide immunity” to the telecommunications companies that are resisting a shift in where the data gets warehoused.

“It’s all a big lift because the program sunsets next year,” Feinstein said. “You’ve got the conservative right, you’ve got the liberal left. And it’s very difficult to get 60 votes, let alone a consensus.”

Adding to the complexity in the Senate are divisions over just how far to push the intelligence community. Some Republicans are against making any changes along the lines of what Obama has proposed, including North Carolina Sen. Richard Burr, a senior member of the Intelligence panel.

“I don’t think there’s an appetite on the part of the committee,” Burr said when asked about the prospects for NSA reform. Other Senate players on intelligence issues say they would prefer a broader debate over the issues raised in Snowden’s stolen documents.

“I think it’s time to re-examine the whole set of laws, but to not throw them out the door and make sure we’re not putting the country at risk,” said Sen. Orrin Hatch (R-Utah.), a senior member of the Judiciary Committee and a former chairman.

Leahy called Obama’s proposals “promising” for sending the bulk collection program to the telephone companies. “But,” he added, “true reform must be comprehensive.”