Expansive surveillance reform takes backseat to House politics

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Congress is waving the white flag about moving forward with more expansive intelligence reform.

As lawmakers stare down the barrel of a deadline to renew or reform the Patriot Act, they have all but assured that more expansive reforms to U.S. intelligence powers won’t be included.

It’s not because of the substance of the reforms — which practically all members of the House Judiciary Committee said they support on Thursday — but because they would derail a carefully calibrated deal and are opposed by GOP leaders in the House and Senate.

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The House Judiciary Committee killed an amendment to expand the scope of the USA Freedom Act — which would reform the National Security Agency’s (NSA) bulk collection of Americans’ phone records and some other provisions — by a vote of 9-24.

“If there ever was a perfect being the enemy of the good amendment, then this is it,” said Rep. Jim Sensenbrenner (R-Wis.), a supporter of the idea behind the amendment who ultimately voted against it.

“What adoption of this amendment will do is take away all leverage that this committee has relative to reforming the Patriot Act. ... If this amendment is adopted, you can kiss this bill goodbye,” he added.

The amendment from Rep. Ted PoeTed PoeOvernight Cybersecurity: House to offer bill on government hacking powers House simmers with criticism for Saudi Arabia House Republicans press case for impeaching IRS commissioner MORE (R-Texas) would block the spy agency from using powers under Section 702 of the FISA Amendments Act to collect Americans’ Internet communications without a warrant. The NSA has relied on the powers of Section 702 to conduct its “PRISM” and “Upstream” collection programs, which gather data from major Web companies such as Facebook and Google, as well as to tap into the networks that make up the backbone of the Internet.

The amendment would have also prevented the government from forcing tech companies to include “backdoors” into their devices, so that the government could access people’s information.

“Unless we specifically limit searches of this data on American citizens, our intelligence agencies will continue to use it for this purpose and they will continue to do it without a warrant,” Poe said. “A warrantless search of American citizens' communication must not occur.”

The discussion during Thursday’s markup offered a fascinating glimpse into the political calculations and sacrifices lawmakers make in order to advance legislation.

While every committee member who spoke up was in support of the amendment, it ultimately failed because of fear that it would kill the overall bill.

“We have been assured if this amendment is attached to this bill, this bill is going nowhere,” Judiciary Committee Chairman Bob Goodlatte (R-Va.) said. “This amendment is objected to by many in positions who affect the future of this legislation.”

In the Senate, Majority Leader Mitch McConnell (R-Ky.) and Intelligence Committee Chairman Richard Burr (R-N.C.) have introduced legislation to renew the Patriot Act without changes. If the USA Freedom Act were to be scuttled because of the new amendment, backers said, that Senate effort would become the default path forward.

The move to drop the fix was all the more frustrating, supporters of the amendment said, because Congress overwhelmingly voted 293-123 to add similar language to a defense spending bill last year.  

“How can it be when the House of Representatives has expressed its will on this very question, by a vote of 293-123, that that is illegitimate?” asked Rep. Zoe Lofgren (D-Calif.), who supported the amendment.

While lawmakers blocked Thursday’s amendment, many suggested that it would be brought up as an amendment to various appropriations bills in coming months. The 702 powers are also set to sunset in 2017, which should force a debate on them then.

Goodlatte also pledged to hold a hearing on the matter “soon.” But that provided little reassurance to critics of the NSA’s powers.

“We’re talking about postponing the Fourth Amendment and allowing it to apply to American citizens for at least two years,” said Poe.