Bloomberg News

Phone-Record Spying Gives U.S. Congress Road Map to Rein in NSA

September 16, 2013

Representative Mike Rogers

Representative Mike Rogers, a Michigan Republican who leads the House intelligence committee, said, “We have a very healthy list of issues that we believe, both bicameral and bipartisan, will help rebuild confidence in these programs.” Photographer: Scott Eells/Bloomberg

Even amid international criticisms over some National Security Agency intelligence gathering activities, there are few signs Congress this year will alter the programs’ guts: what’s collected and how it’s used.

As U.S. intelligence leaders meet this week with lawmakers to discuss possible legislative changes, they may debate how a secret court authorizes the spying, the legal standard for surveillance targets or where to store the records.

Beyond that, congressional leaders probably have little appetite for restricting the NSA’s activities, wary of being blamed if there’s a future terrorist attack, said Michael Mandelbaum, a professor of foreign policy at The Johns Hopkins University in Baltimore.

“Nobody wants to be seen as weakening defenses against terrorism,” Mandelbaum said in an interview.

The legislative push follows a series of disclosures from former NSA contractor Edward Snowden since June that have raised questions about whether intelligence gathering violated the privacy of Americans -- and some U.S. allies.

“It’s very clear that, to the extent that we keep these tools at all, they’re going to be legislatively amended,” Director of National Intelligence James Clapper said during a speech in Washington Sept. 12. “We can do with more oversight and give people more confidence in what we do.”

Robert Litt, general counsel for intelligence agencies, is scheduled to testify to lawmakers in closed session this week to discuss legislative proposals.

Rebuilding Confidence

Representative Mike Rogers, a Michigan Republican who leads the House intelligence committee, predicted Congress will agree to some changes this year. House and Senate intelligence panels have been exchanging proposals, said Rogers, declining to discuss details.

“We have a very healthy list of issues that we believe, both bicameral and bipartisan, will help rebuild confidence in these programs,” Rogers said in an interview.

Rogers and Clapper said changes are needed to rebuild public confidence in the spy programs following Snowden’s disclosures to news media outlets.

Since then, Clapper has ordered some documents declassified in response to lawsuits from privacy groups including the American Civil Liberties Union and San Francisco-based Electronic Frontier Foundation.

Innocent Americans

The intelligence apparatus created after the Sept. 11, 2001, terrorist attacks grew so large that nobody fully understood how it worked, letting the NSA illegally intercept some phone calls and e-mails of innocent Americans, declassified documents show. The NSA violated surveillance rules on telephone records for almost three years and misled the secret Foreign Intelligence Surveillance Court overseeing the programs, the documents said.

The documents were made public after revelations about U.S. phone and Internet surveillance by Snowden, who fled to Hong Kong and then on to Russia, where he has temporary asylum.

President Barack Obama canceled a planned summit with Russia and relations between the two nations remain strained. The leaders of Mexico and Brazil also have demanded explanations about spying on their governments.

Obama said in August he was willing to consider changes to spy programs.

Rogers said he’ll oppose proposals that damage the NSA’s ability to prevent terrorist attacks.

“This agency is too critical to providing for the defense and security of the United States of America to allow cheap political amendments to tear it down,” he said.

Phone Records

Representative C.A. “Dutch” Ruppersberger of Maryland, the top Democrat on the House intelligence committee, and Representative Jan Schakowsky, an Illinois Democrat on the panel, are considering a proposal that would require phone companies, rather than the NSA, to retain call records for surveillance programs.

Snowden exposed a secret court order compelling Verizon Communications Inc. (VZ:US) to turn over to the NSA phone records, such as numbers and call durations, on millions of Americans. The Obama administration has said the metadata collection involves more phone carriers, without naming them.

“We are looking to see whether or not we can have the providers keep the metadata,” Ruppersberger said.

Senator Dianne Feinstein, a California Democrat and chairman of the Senate intelligence committee, opposed the idea after reviewing an intelligence analysis on how costly and complicated it would be. The telecommunications industry has lobbied Congress and the administration to defeat the idea.

Legal Restrictions

Senator Patrick Leahy, a Vermont Democrat and chairman of the Senate Judiciary Committee, and Representative Justin Amash, a Michigan Republican, have introduced bills to raise the legal standard for U.S. spies to get phone records.

The legislation would prohibit intelligence agencies from collecting phone records unless they pertain to an individual under investigation. That would prevent bulk collection.

The House in July rejected Amash’s proposal by seven votes. Some lawmakers like Representative Darrell Issa, a California Republican who leads the House Oversight and Government Reform Committee, now want a do-over after the disclosure of NSA abuses.

Issa voted against the Amash proposal and since has reversed his position, Justin LoFranco, the committee’s digital director, said in an e-mail. Issa wrote a letter Sept. 10 to House Majority Leader Eric Cantor, a Virginia Republican, asking for the proposal to be revived for a vote.

Court Changes

Senator Richard Blumenthal, a Connecticut Democrat on the Judiciary Committee, has introduced bills to make changes in the secret court, including creating the role of privacy advocate.

“These revelations are shocking and provide very powerful evidence that the FISA court has depended on the agency to disclose its own misconduct, which simply is inadequate,” Blumenthal said in an interview. “We need the court to have tools, including an adversarial process for ferreting out potential abuses.”

Blumenthal said he’s convinced any changes should be part of a comprehensive plan that includes Leahy’s measure and proposals by Senators Al Franken, a Minnesota Democrat, and Jeff Merkley, an Oregon Democrat, to require more disclosure of NSA operations.

Not much may move through Congress this year, especially as lawmakers focus on other matters such as securing and removing chemical weapons in Syria, said Joseph Nye, a Harvard University professor and former dean of the John F. Kennedy School of Government in Cambridge, Massachusetts.

Congress may be able to agree on having a public advocate on the FISA court or perhaps third-party custody of the phone metadata, Nye said.

Blumenthal agrees that debate over some proposals will slip into 2014, and said the broadest areas of consensus today revolve around FISA-court oversight. He said the metadata proposals may have to wait.

“The president has said we need to have a national debate, but I’m not sure enough of debate has occurred for anything to emerge soon with any consensus on it,” Nye said in an interview.

To contact the reporters on this story: Chris Strohm in Washington at cstrohm1@bloomberg.net; Laura Litvan in Washington at llitvan@bloomberg.net

To contact the editor responsible for this story: Bernard Kohn at bkohn2@bloomberg.net


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