Members of Congress who want to end the National Security Agency's mass collection of Americans’ phone data sharply warned the Obama administration on Tuesday to get behind a bill to end the controversial practice, or risk losing the counter-terrorism powers provided by the post-9/11 Patriot Act.

Deriding the paucity of legislative alternatives after President Obama's announcement last month that he wants to transfer the responsibility for bulk collection out of the NSA, congressman Jim Sensenbrenner, the co-sponsor of the USA Freedom Act, told deputy attorney general James Cole at a House judiciary committee hearing that "you will get nothing" if the administration does not endorse the bill.

Asked why the Justice Department had not taken a position on the bill, Cole said: "The Department of Justice is a big place."

Cole said that his hesitation was prompted by an internal administration review of the various alternatives for retaining what he called the "efficiency" of searching a vast phone data trove, either held by phone companies or a new private entity.

But Cole suggested that a portion of that review is a consideration of a new mandate for the telecoms to hold data longer than they currently do, which the companies oppose for legal, security and financial reasons. "We'll have to work through what we think is the optimal period of time for the records to be kept," Cole said.

Bob Goodlatte, the chairman of the panel, said the committee needed to know the administration's perspective on the USA Freedom Act "sooner rather than later." Members are "chomping at the bit to move forward," Goodlatte said.

John Conyers, the ranking Democrat on the panel, warned that permitting bulk data collection to continue unabated risked congressional support for the entire portion of the Patriot Act the government claims authorizes it, known as Section 215, a provision set to expire on 1 June 2015. "We should address bulk collection today, or we risk losing all of Section 215 this time next year," Conyers said.

The House Judiciary Committee has been a bed of skepticism about the necessity, prudence and legality of bulk surveillance since the Guardian first reported the mass phone records surveillance in June, based on leaks from whistleblower Edward Snowden.

Its dissatisfaction with the bulk surveillance contrasts sharply with the House intelligence committee. At least half of the judiciary committee supports the USA Freedom Act "and our numbers grow every week," Conyers said.

Much as support for bulk surveillance is a bipartisan position in the House intelligence committee, opposition in the judiciary committee is bipartisan. Liberal Democrat Zoe Lofgren and conservative Republican Darrell Issa, both of California, probed Cole to say on the record that the NSA phone records trove includes legislators' call records, something the NSA has been hard-pressed to deny on the record.

"202-225 and four digits. Do you collect it?" Issa asked Cole, referring to the prefix of office numbers for members of the House of Representatives.

"Probably we do," Cole answered.

Issa rejoindered that he had been in touch with the deputy prime minister of Lebanon after accusations emerged that the official had given money to Hezbollah, warning that a senior member of Congress was only two degrees of separation from terrorists.

Peter Swire, a member of Obama's surveillance advisory board – which in December advocated the end of the NSA's phone records databases – said he was unaware of any procedures to "scrub out" congressional data from the phone records databases, but both he and Cole said the NSA was prevented from searching through the troves for a specific phone number without "reasonable articulable suspicion" of connection to a terrorist group.

Giving an additional indication of the scope of the ongoing internal administration review, Cole suggested that new privacy protections for non-Americans, which Obama endorsed last month but without specifics, would stop short of ending the mass collection of their data.

"As a matter of policy, certain privacy safeguards afforded for signals intelligence containing US person information will be extended to non-US persons, where consistent with national security," Cole said.

While the Justice Department and the Office of the Director of National Intelligence have not publicly discussed the contours of the ongoing internal surveillance review – expected to wrap late next month – Cole's remarks suggested that the brand-new foreigner privacy protections would center around when the NSA can retain and disseminate data on non-Americans, rather than limiting that data's collection.



Under pressure from members, Cole conceded that the USA Freedom Act was at least compatible with the surveillance reforms Obama announced in his January speech at the Justice Department. "Many of the goals set out there are goals that we share," Cole said.

The choice before the administration, Sensenbrenner said, was to support the USA Freedom Act "or letting the clock tick until June 1 of next year and there will be nothing."

"If you have problems with the bill, let's talk about it," Sensenbrenner said. "I don't want to hear any ex post facto complaining."

