Leahy pulls rank on lame-duck agenda

Greg Nash

Sen. Patrick Leahy of Vermont is twisting Senate Majority Leader Harry Reid’s (D-Nev.) arm about passing surveillance reform in the lame-duck session of Congress despite reluctance from the White House.

 Leahy, the chairman of the Senate Judiciary Committee and the most senior member of the Democratic caucus, is insisting his bill, the USA Freedom Act, pass before he loses his gavel at the end of the year.

{mosads}“He’s invoking his chairman’s authority and pushing back on the White House,” said a senior Senate aide. 

This poses a headache for Reid, who has a packed agenda for the weeks between Thanksgiving and Christmas and would prefer not to jam National Security Agency (NSA) reform in as well, according to Senate aides.

Reid wants to prioritize the omnibus spending bill, the annual Defense Department authorization, a package of tax extenders, an extension of the Internet tax moratorium, and confirm as many judicial and executive branch nominations as possible.

Other Democrats, such as Sen. Tim Kaine (D-Va.), have demanded a vote on legislation authorizing the use of force against the Islamic State in Iraq and Syria.

Reid must also weigh the reluctance of the White House, which does not want to see National Security Agency (NSA) reform move during the lame duck, according to Senate sources.

But Leahy, who prides himself as “one of the most effective legislators” in Congress, has no intention of letting the White House or Reid postpone action on what could be his last accomplishment as chairman. 

Last month, he issued a pointed statement pressing Reid to move his bill.

“When the Senate returns next month, it must swiftly take up and pass the USA FREEDOM Act,” he said on Oct. 10. “There is no excuse for inaction, as the important reforms in this bipartisan bill are strongly supported by the technology industry, the privacy and civil liberties community, and national security professionals in the intelligence community.”

When asked Friday whether President Obama shared Leahy’s desire to move his NSA bill in the post-election session, White House Press Secretary Josh Earnest listed other priorities on the agenda, including legislation to prevent a government shutdown and fight Ebola as well as an extension of Title X authority to train and equip rebel fighters in Syria.

“There could be some other priorities that emerge in the next couple of weeks,” he added.

A Senate Judiciary Committee aide said she was not aware of any reluctance by the White House or the Democratic leadership to move NSA reform in the lame duck.

She noted The New York Times reported Friday that congressional leaders “have expressed growing interest in trying to pass legislation” overhauling the intelligence agency’s authority. 

The aide pointed to a letter that Attorney General Eric Holder and Director of National Intelligence James Clapper sent to Leahy on Sept. 2 stating “the bill’s significant reforms should provide the public greater confidence in our programs and the checks and balances in the system.”

But the letter also left the administration wiggle room to back away from the legislation if it was determined to have an adverse impact on national security.

“It is possible that there are additional impacts that we will be able to identify only after we start to implement the new law,” they wrote. “You have our commitment to notify Congress if we determine that the new law is impeding the intelligence community’s ability to protect national security.”

Policy experts say the White House might now calculate it can negotiate a better deal after Republicans take control of the Senate next year.

“Everybody who is key to the compromises in both Houses are gone. It’s not just that Leahy is losing his chairmanship but [House Intelligence Committee Chairman Mike] Rogers is retiring,” said Benjamin Wittes, a senior fellow in governance studies at the Brookings Institution. 

“I think the calculation may be if Leahy is not the lynchpin anymore and the strong House-side leadership is gone and the Intelligence Committee still has a strong bipartisan majority that may be friendlier from the intelligence community’s point of view, you may get yourself a better deal,” he added.

The president has already taken several administrative steps to reform the NSA’s practices.

In January, Obama announced he would ban eavesdropping on the leaders of U.S. allies. He also said intelligence officials would need “a judicial finding” before checking databases tracking calls except in cases of “true emergency.”

Leahy’s bill would end the bulk collection of communications by requiring intelligence officials to show that what they are seeking is relevant to an authorized investigation into international terrorism or clandestine intelligence activities pertaining to a foreign power.

Privacy advocates favor Leahy’s measure over House legislation that passed in May. They complained the protections in the House version were diluted.

“The Senate version of the bill has a clearer, more tightly defined ban on bulk collection that supporters are more comfortable with,” said Kevin Bankston, the policy director at the New America Foundation’s Open Technology Institute.

He said advocates worry the language in the House bill does not ban the bulk collection of records as clearly as Leahy’s. He said the House left open potential loopholes that would allow intelligence agencies to collect all of the phone records of a city or company.

Some critics warn Leahy’s bill would tie the hands of intelligence officials who are trying to protect the nation from terrorists, particularly in light of the threat from the Islamic State of Syria and Iraq (ISIS).

“If you want to take away the ability to monitor ISIS, then you eliminate the tools that are eliminated in the Leahy bill,” Sen. Saxby Chambliss (Ga.), the top Republican on the Senate Intelligence Committee, told The Hill in September. “I can’t imagine anybody wanting to do that.”

Gary Schmitt, an intelligence and national security expert at the American Enterprise Institute, said White House officials and Democratic leaders might have reconsidered the political wisdom of Leahy’s bill.

“There’s probably a feeling of, we just lost an election where some part of it was because worries over national security,” he said. “I have my doubts there are a lot of lame-duck Democrats that want to jump into this fight at this point.

“What’s happened since Leahy was riding high is the increase of concerns about ISIL,” he added, using an alternative acronym for ISIS. “I think they would be more antsy about it.”

Schmitt said Holder and Clapper might have signaled a willingness to accept Leahy’s bill earlier this year when it appeared more likely to pass Congress.

“They were saying that when they had to. I think they think the House bill is a better bill,” he said. “I’d be very surprised if their folks aren’t telling people they’d rather wait until the new Congress is in.”

Bankston said if Leahy’s bill passes the Senate in December, the House would likely approve it because House GOP leaders want to avoid an intraparty fight over NSA reform when there are other priorities to address in the new Congress.

The legislation doesn’t need to pass until June of next year, when several provisions of the Patriot Act expire.

Julian Hattem contributed to this report.


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