CIO Briefing

Why Obama and His NSA Defenders Changed Their Minds

House Intelligence Committee Chairman Rep. Mike Rogers, R-Mich.

House Intelligence Committee Chairman Rep. Mike Rogers, R-Mich. // Jacquelyn Martin/AP

It was only months ago that President Obama, with bipartisan backing from the heads of Congress's Intelligence committees, was insisting that the National Security Agency's mass surveillance program was key to keeping Americans safe from the next major terrorist attack. They were also dismissing privacy concerns, saying the program was perfectly legal and insisting the necessary safeguards were already in place.

But now, Obama's full-speed ahead has turned into a hasty retreat: The president and the NSA's top supporters in Congress are all pushing proposals to end the NSA's bulk collection of phone records. And civil-liberties groups—awash in their newly won clout—are declaring victory. The question is no longer whether to change the program, but how dramatically to overhaul it.

So what changed?

It's not that Obama and his Hill allies suddenly saw the error of their ways and became born-again privacy advocates. Instead, with a critical section of the Patriot Act set to expire next year, they realized they had no choice but to negotiate.

If Congress fails to reauthorize that provision—Section 215—by June 1, 2015, then the NSA's collection of U.S. records would have to end entirely. And the growing outrage prompted by the Snowden leaks means that the NSA's supporters would almost certainly lose an up-or-down vote on the program.

Rep. Adam Schiff, a Democratic member of the House Intelligence Committee, said that looming sunset is what forced lawmakers to the bargaining table. "I think what has changed is the growing realization that the votes are simply not there for reauthorization," he said in an interview. "I think that more than anything else, that is galvanizing us into action."

Obama and the House Intelligence Committee leaders believe their proposals are now the NSA's best bet to retain some power to mine U.S. phone records for possible terror plots. Senate Intelligence Committee Chairwoman Dianne Feinstein, another leading NSA defender, also indicated she is on board with the changes, saying the president's proposal is a "worthy effort."

And though the Hill's NSA allies are now proposing reforms to the agency, they don't seem particularly excited about it.

At a Capitol Hill press conference Tuesday, Rep. Mike Rogers, the Republican chairman of the House Intelligence Committee, and Rep. Dutch Ruppersberger, the panel's top Democrat, often sounded like they were arguing against their own bill that they were unveiling.

"I passionately believe this program has saved American lives," Rogers said. Ruppersberger said if the program had been in place in 2001, it may have prevented the Sept. 11 attacks.

But the lawmakers acknowledged there is broad "discomfort" with the program as it is currently structured.

"We need to do something about bulk collection because of the perception of our constituents," Ruppersberger admitted.

Under their legislation, the vast database of phone records would stay in the hands of the phone companies. The NSA could force the phone companies to turn over particular records, and the Foreign Intelligence Surveillance Court would review the NSA orders after the fact.

But Rogers rejected a reporter's suggestion that the NSA should have never had control of the massive database of phone records in the first place.

"There was no abuse, no illegality, no unconstitutionality," he said.

For all their hesitance, however, Rogers and company much prefer their version to a competing proposal to change the way the government gathers information.

That would be the USA Freedom Act, a proposal from Senate Judiciary Committee Chairman Patrick Leahy and Rep. Jim Sensenbrenner that Rogers and his ilk fear would go too far in hamstringing the NSA. The USA Freedom Act would require the NSA to meet a tougher standard for the data searches and would limit other NSA programs, such as Internet surveillance of people overseas.

Additionally, President Obama is expected to unveil his own plan to reform the controversial phone data collection program this week. According to The New York Times, Obama's proposal would also keep the database in the hands of the phone companies. His plan would have tougher judicial oversight than the House bill by requiring pre-approval from the court for every targeted phone number, the newspaper reported.

But though the momentum has shifted and officials seem to be coalescing around a framework for overhauling the NSA program, the question is far from settled.

Leahy and Sensenbrenner are not backing off from their USA Freedom Act, and outside groups will continue their policy push as well.

In a statement, the Electronic Frontier Foundation, a privacy advocacy group, said the White House proposal and the House bill would make "seemingly significant changes" to NSA spying. The group said it prefers the White House plan because it would impose more judicial review on the process.

Michelle Richardson, a lobbyist for the American Civil Liberties Union, said she is "optimistic" about the White House plan but maintained that the House bill is on the "wrong track."

She said it would actually be a step back from the status quo, because Obama already implemented reforms in January that require judicial approval before each search of the database.

"The bill's modest improvements to the phone-records program are not worth demolishing the important judicial role in overseeing these programs," she said. "The best bill we've seen so far to fix the NSA is the bipartisan USA Freedom Act."

And while Leahy and Sensenbrenner push, the Intelligence Committee leaders are digging in as well, saying the USA Freedom Act would jeopardize national security.

"In my opinion," Ruppersberger said, "the Sensenbrenner bill makes our country less safe."

This article appears in the March 26, 2014 edition of NJ Daily.

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