Congress Readies Push to Rein in the Nation’s Spooks

Key NSA spying methods are set to expire this summer. Lawmakers from both parties will finally have to decide what to do about them.

US National Security Agency (NSA) whistleblower Edward Snowden speaks to European officials via videoconference during a parliamentary hearing on improving the protection of whistleblowers, at the Council of Europe in Strasbourg, eastern France, on June 24, 2014. AFP PHOTO/FREDERICK FLORIN (Photo credit should read FREDERICK FLORIN/AFP/Getty Images)

For more than a year, Congress has avoided resolving the searing debate over how government spooks can track down terrorists while still protecting Americans’ privacy. With laws allowing for the collection of billions of phone and Internet records set to expire, however, lawmakers will finally have to make a choice.

Facing a June 1 deadline, Congress will have to decide whether to renew, revamp, or retire post-9/11 surveillance methods like the bulk collection and storage of phone and other data. The debate will unfold in the shadow of the deadly attack in Paris against Charlie Hebdo magazine, and it comes as Britain considers giving its own intelligence agencies more authority to do greater surveillance. Additionally, concerns over the Islamic State’s efforts to recruit potential fighters across Europe and America has fueled demands for sharper spycraft.

But the call for preserving civil liberties has its own staunch supporters across the world. U.S. snooping has outraged Americans and foreign allies since June 2013, when former government contractor Edward Snowden revealed information on classified global surveillance programs that involved the U.K., Australia, and Canada, as well as details of an operation that allowed the National Security Agency to access Americans’ Google and Yahoo accounts. Stung by the criticism, Barack Obama’s administration is expected to soon issue a report showing how it has sought to keep spies from overreaching. And a bipartisan coalition of lawmakers is prepared to push anew for reforms that fell short last year.

One of the leaders of the charge for change is Rep. James Sensenbrenner (R-Wis.), who helped write the Patriot Act, which was approved a month after the 9/11 attacks. Sensenbrenner has since rapped U.S. intelligence agencies for going beyond the limits of the law, and he accused the Senate of stonewalling the issue last year. He plans to reintroduce the USA Freedom Act, which was blocked from being put to a vote in the Senate last November. After passing the House in May, the bill failed to win enough votes in the Senate.

“We were stopped short of the goal line,” Sensenbrenner said in an email to Foreign Policy. He predicted the June deadline will force Congress to act this year, “despite scare tactics and fear mongering.”

The plan by Sensenbrenner and Sen. Patrick Leahy (D-Vt.) restricts intelligence agencies from indiscriminately sweeping up phone and Internet records, and it requires the inclusion of a civil liberties advocate at secret court hearings where government lawyers ask for wide-reaching surveillance. Among other reforms, it also creates an appeals process for decisions by the Foreign Intelligence Surveillance Court, which holds its meetings in secret and currently only considers the government’s requests.

But Republican leaders who control the House and Senate have signaled their opposition to reform, saying it would undermine the ongoing fight against the Islamic State and other terrorist groups. Instead, they’re calling for a “clean reauthorization” of the expiring laws that would keep the surveillance methods firmly in place.

“I urge my colleagues to consider a permanent extension of the counterterrorism tools our intelligence community relies on to keep the American people safe,” Sen. Marco Rubio, a Florida Republican who is considering a presidential campaign, wrote in a Jan. 27 opinion article for Fox News’s website.

This month, House Speaker John Boehner indicated that the surveillance program helped thwart a recent plot to attack the U.S. Capitol. Had it not been for the government surveillance, “we would have never known about this,” Boehner told reporters on Jan. 15.

Boehner refused to elaborate. Court documents show that the suspect, 20-year old Christopher Cornell, first attracted the FBI’s attention with Twitter messages expressing sympathy for the Islamic State and later told a government informant of his aspirations for the attack.

Across the Atlantic, allies are watching to see how the United States addresses the thorny matter of spying on European citizens. The National Security Agency, for example, monitored German Chancellor Angela Merkel’s cell phone for 10 years. She was one of several heads of state caught in the U.S. surveillance dragnet, which infuriated allies and created a diplomatic headache for Obama. Merkel reportedly compared the National Security Agency to the Stasi, the Cold War-era surveillance arm of communist East Germany, during a conversation with Obama.

Peter Swire, an attorney at law firm Alston & Bird and an expert on privacy law at the Georgia Institute of Technology, said European leaders want as many civil liberties protections from snooping for their publics as will be given to Americans.

“From the European point of view, they want assurances that their citizens will be treated the same way as U.S. citizens and that their citizens shouldn’t be subjected to surveillance,” Swire said.

Swire served on a review panel appointed a year ago by Obama to address privacy concerns — both in the United States and abroad — raised by the widespread surveillance that Snowden revealed. Snowden has fled to Russia to avoid U.S. prosecution for stealing classified government documents and sharing them with journalists — an act he has described as necessary to protect Americans’ civil liberties and privacy rights.

White House spokesman Shawn Turner said the Obama administration is preparing to issue a report next month on how U.S. intelligence agencies have adopted recommendations from that panel and those from the independent Privacy and Civil Liberties Oversight Board. But any reforms enacted solely by the White House can be changed by future presidents — meaning they will only soothe concerns for the near future, Swire said.

Even as they seek to tighten surveillance, the policymakers who are pushing reforms also are wary of appearing soft on terrorism. One plan, supported by the expert panels, would require phone companies and Internet providers to continue collecting and storing data — but would force the government to obtain a court order before accessing it. That would require the government to narrow its searches based on specific information instead of sweeping up billions of data records each day.

Rep. Adam Schiff (D-Calif.) said that this plan would help strike a balance between privacy rights and necessary intelligence tools to track threats.

The surveillance program “can be restructured so that we retain the important capabilities we need to stop terrorist plots and protect the privacy interests of the American people,” said Schiff, the top Democrat on the House Intelligence Committee.

Photo credit: FREDERICK FLORIN/AFP/Getty Images

Gopal Ratnam is a senior staff writer at Foreign Policy, covering the White House, the Pentagon and broader national security issues. A native of India,Gopal has covered topics ranging from child-labor law violations and the automotive industry to the international arms trade, the politics of weapons purchases, and the wars in Iraq and Afghanistan. He has reported from dozens of countries, including Iraq and Afghanistan. Most recently he was the Pentagon reporter for Bloomberg News. Twitter: @g_ratnam