In a dramatic change of tone, Rep. Mike Rogers, the chairman of the House Intelligence Committee, praised a bill in the House Judiciary Committee that would sharply curb the National Security Agency’s surveillance powers. His remarks suggest that the powerful lawmaker may be more willing to vote for tougher reforms than previously anticipated.
Rogers and other national security hawks have spent weeks arguing that the USA Freedom Act, the most aggressive NSA reform bill under consideration in Congress, would remove tools that the government needs to track phone calls by foreign terrorists. Rogers, a staunch NSA supporter, is the sponsor of another bill that would codify many of the surveillance practices opposed by privacy advocates, such as the dragnet collection of records.
Hill watchers have long predicted that the bills were on a collision course that would wind up pitting two of the party’s most powerful lawmakers, Rogers and House Judiciary Committee Chairman Bob Goodlatte of Virginia, against each other.
Instead, Rogers said that he had warmed to the Judiciary bill because of a new amendment that would give the NSA broader authority, including the ability to obtain phone data in emergency situations under certain conditions. Surveillance critics worry the amendment has watered down the original bill’s privacy protections and transparency requirements.
In an interview with Foreign Policy, Rogers said those changes constituted a "huge improvement" and that he may end up supporting the bill despite the existence of his rival NSA reform bill scheduled for a vote in the House Intelligence Committee on Thursday.
"I have always been willing to work with people who had serious advice and counsel in how to get this right," Rogers said. "They’ve come a lot closer [and] now we’re just trying to work out the wording."
Rogers’ words come as a surprise to NSA critics in Congress given the substantive differences between the USA Freedom Act and his own bill, even in light of Monday’s amendment.
"It’s very encouraging, obviously," said Rep. Jerrold Nadler, a Democratic member of the Judiciary Committee and a backer of the USA Freedom Act. "We anticipated that we would have to have a battle between the two committees and if Rogers is signaling we may not have to, that’d be great."
The USA Freedom Act has become more palatable to national security hawks following a compromise by the committee’s civil libertarians. On Monday, Goodlatte gave his support to the bill after it was amended to allow the government to collect phone data on U.S. citizens based on a "reasonable articulable suspicion" of wrongdoing — a standard the NSA favors. If approved, the government can collect metadata on individuals who are two degrees or "hops" of separation from the suspect under the law. The changes also allow the government to bypass prior judicial approval for phone data in cases of emergencies (i.e. a ticking time bomb scenario).
Still, large substantive gaps remain between the bills in the two committees. Although both proposals would keep phone records in the hands of phone companies as opposed to the NSA, the similarities stop there. The Intelligence bill, for instance, does not require the NSA to obtain prior court approval to query each individual number it wants to see. The Judiciary bill does, except in cases where a terrorist attack is iminent. In such a scenario, the bill requires a determination by the attorney general that the request is reasonable and forces the AG to apply for retroactive court approval within seven days. The Judiciary bill also prohibits the practice of bulk data collection through the use of national security letters (NSLs) while the Intelligence bill does not.
While it remains unclear how the two committees will resolve the outstanding differences, the apparent breakthrough is likely to come as a relief to House leadership, which doesn’t want a bloody surveillance reform fight to jeopardize other pieces of critical legislation such as the annual defense authorization bill (NDAA).
"I’m glad that Rogers said that," said a Republican House leadership aide. "It’s encouraging that both committees are basically looking for a way forward." House leaders have scheduled the NDAA for a floor vote on May 19.
Rogers insists he’s always been open to responsible compromise, including the consideration of competing bills. "If we can work this out and have Judiciary be the primary bill, I’m absolutely fine with that," he said. "This is not about pride of authorship for me. It’s about how you get this right." Rogers still plans to hold a vote on his NSA reform bill on Thursday to keep his options open.
Still, the fate of NSA reform is far from certain. Any compromise to the Judiciary bill risks an insurrection from civil libertarians in Congress. Michigan Republican Justin Amash led such a revolt last year when he offered an NSA amendment to a defense appropriations bill that would have stripped funding for the NSA’s collection program. The Amash provision terrified House leadership and nearly passed in a dramatic House floor vote. At the moment, Amash’s spokesman said his boss is still reviewing the revised version of the USA Freedom Act to see if he’ll lead a similar kind of insurrection.
"I will carefully review Judiciary Committee-revised version of #FreedomAct," Amash tweeted. "Just a weakened bill or worse than status quo? I’ll find out."