Senate Majority Leader Mitch McConnell (R-KY) displayed astonishing dual faces last week. On the one hand, he proved an adroit leader in fashioning compromises to keep President Obama’s trade agenda successfully on track. On the other hand, through a combination of arrogance and stubbornness, he badly fumbled legislative tactics to forestall the demise of vital National Security Agency authority to monitor communications between potential terrorist individuals and organizations. The legal authority in question expires on June 1, and McConnell thought – incorrectly as it turned out – that he could invoke national security imperatives to cow the Senate into voting to extend the current system. At this point, it is by no means clear that a legislative solution can be achieved prior to the Monday deadline. This blog will describe how we got to this point, spell out the important provisions of the House-passed USA Freedom Act, and suggest possible legislative compromises and outcomes.
First, let’s examine the political breakdown in Congress. Both Republicans and Democrats in the House of Representatives supported passage of the USA Freedom Act (the final vote ended 338-88), which was itself an amendment to the Patriot Act. Many of the 88 opponents voted no because they didn’t think the reforms went far enough. Certainly among House Republicans there are staunch supporters of the intelligence community. They made their presence felt in the negotiations between the House Judiciary Committee and the House Intelligence Committee, which produced changes in the House bill that partially assuaged NSA defenders (more on this later). The USA Freedom Act subsequently has received support from the president and from both the NSA director and the head of the FBI. Tech companies and trade associations have also weighed in with a powerful lobbying effort.
In the Senate, a solid majority of Republicans prefers to keep the present system and, thus, to extend current law as it stands. Senate Majority Leader McConnell has adopted a very hard line against changes to the program, and against the USA Freedom Act. On the other side, virtually all Senate Democrats support the House-passed USA Freedom Act, along with a small group of Republicans. Sen. Ron Paul (R-KY) leads another small group of senators who oppose any renewal of expiring provisions of the Patriot Act.
In last week’s key Senate votes on whether to extend the Patriot Act without change, or to pass the new USA Freedom Act, Patriot Act supporters lost by a substantial margin (45-54), while supporters of the House bill mustered almost enough votes (57-42) to ultimately pass the reforms (this vote was actually on ending a filibuster and moving on to the bill’s passage). With the urgency of the Memorial Day break pressing, neither side could muster the necessary 60 votes, so McConnell engineered Senate adjournment until next Sunday, May 31 – just hours before key provisions of the current Patriot Act expire.
Remembering that the USA Freedom Act is a product of negotiations between the House Judiciary and Intelligence committees and thus tilts slightly more toward intelligence concerns than did a similar House bill last year, what are the most important changes in the Patriot Act wrought by the new USA Freedom Act? First, the new bill terminates the NSA’s bulk collection of phone records (Section 215 of the Patriot Act). Should the USA Freedom Act become law, private phone companies would hold onto the information, and the government could only demand access after getting an order from the Foreign Intelligence Surveillance (FISA) Court. Still, it should be emphasized that the NSA would not be able to – without a further court order – listen in on actual conversations, or go beyond obtaining information about the phone numbers and the times, dates and location of the calls. The NSA could ask for additional data on particular phone numbers or other “specific selection terms.” But these terms cannot include broad sweeps such as entire zip codes or cities, effectively ending large-scale data collection.
The second important change to existing law consists of reforms to FISA court procedures, with the creation of a group of amici curiae (friends of the court) to assist the court and give an independent voice (beyond the government) in its deliberations. The FISA court judges have sole authority to designate amici curiae in matters that present “novel or significant interpretations of the law,” unless the court finds such an appointment unnecessary. Comparing this language to an earlier bill reveals that compromises have been made between the Judiciary and Intelligence committees. While the updated language certainly does not destroy the effectiveness of the independent voices, it does somewhat attenuate their authority. Examples include:
- Under the earlier bill, judges had to consult with the Privacy and Civil Liberties Oversight Board in making the appointments; in the new iteration, judges have sole authority.
- In the earlier bill, there was broad construction in language defining “novel or significant” interpretations of the law; in the new bill, that construction has been narrowed, likely leading to less frequent calls for amici.
- In the earlier bill, amici were given broad authority to request information; the new bill gives judges final say as to relevance.
- In the earlier bill, amici could request that the FISA court appoint technical specialists to aid in the case; in the new bill, they can only request additional amici.
- And finally, under the old bill, amici were entitled to any relevant material from the Attorney General; in new bill, the Attorney General has discretion as to providing material.
As of this writing, the most likely option over the coming weekend is for the Senate to concede and pass the House USA Freedom Act before the deadline (though even this solution might be upended by objections from Sen. Rand Paul). If, however, the deadlock remains and Congress must go back to the drawing board, what follows are suggestions for improvement of the House bill.
- Section 215. Critics of the changes in Section 215, including my AEI colleague Gary Schmitt, argue that new procedures are untried, inefficient and cumbersome. There is some force to these arguments. Mandating that metadata collection be turned over to individual phone companies will produce prodigious challenges, including questions over whether software can be fashioned to allow a quick reaction to any NSA requests, or if the companies will even agree to actually retain the data for some specified period.The House bill now provides for a six-month transition period to the new system. While the NSA has stated that this is sufficient, provisions should be introduced for a review at that point – with an extension option – to make certain that the new procedures and software for swift reaction to requests are in place. In addition, at a time to be determined, Congress should require an independent affirmation from the intelligence agencies that their ability to track and find potential terrorists has not been crippled by the changes. Finally, though privacy groups and the companies themselves will strongly oppose the action, some mandate should be enacted (as Sen. Diane Feinstein (D-CA) has demanded) for data retention for a certain time period. If the NSA is to be stripped of metadata collection itself, it must have certainty that the data will be available when a terrorist threat appears.
- FISA Court Reform. Turning back to the privacy side, there is also room for improvement. Though this blog is not the place to reargue the case for or against the record of the FISA, the “rubber stamp” label has stuck and will continue to plague the court’s findings. Ultimately, creation of an independent voice through a competent and strengthened group of amici curiae has the potential to offset the current skepticism.
Thus, if the opportunity presents itself, some of the weakening provisions conceded to the House Intelligence Committee should be revised. Most particularly, amici should be given independent authority to request information, and they should have access, where necessary, to technical specialists. They should also be entitled to all relevant information passed on by the Attorney General.
Finally, the broader construction language regarding “novel and significant interpretations of the law” should be reinstated to provide a wider remit for advisory opinions by the amici.
These suggestions are made with the understanding that there are no perfect tradeoffs between privacy and security, but in the hope that they better reflect a viable balance.
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