Critics of a proposal to reform the National Security Agency (NSA) say the rising threat of terrorism in the Middle East should give lawmakers pause as they consider harnessing the government’s spy powers.
The bill from Sen. Patrick LeahyPatrick Joseph LeahyBiden signs four bills aimed at helping veterans The Hill's Morning Report - Ins and outs: Powell renominated at Fed, Parnell drops Senate bid On The Money — Biden sticks with Powell despite pressure MORE (D-Vt.) would handicap American intelligence officials at a crucial moment, they say, and make it harder to track terrorists around the globe.
Supporters of the bill — including top legal and intelligence officials in the Obama administration — deny that it would hamper the country’s ability to track groups like the Islamic State in Iraq and Syria (ISIS). They say that it’s a practical response to the uproar over the NSA programs that were exposed by Edward Snowden last summer.
Still, the persistent opposition could become an obstacle for Leahy’s USA Freedom Act, which is already facing an uphill climb to passage this year.
“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 this week. “I can’t imagine anybody wanting to do that.”
Sen. Marco Rubio (R-Fla.), a member of both the Intelligence and Foreign Relations Committees, said that Leahy’s legislation would “absolutely” undercut the nation’s ability to track terrorists.
“I’m always sensitive to protecting people’s privacy expectations and privacy rights, but I’m also concerned about eroding our capability to gather actionable intelligence that allows us to prevent attacks and take on our enemies,” he said.
Leahy and other supporters this week dismissed concerns that the rise of ISIS could derail the USA Freedom Act.
“We’re always going to face threats,” Leahy told The Hill. “The biggest one we can face is the threat to our own liberties and our own privacy.”
“We’ll pass the Freedom Act,” he added.
It remains to be seen whether the ISIS threat will change the minds of any senators who were not already against the bill.
Still, the strong resistance does not bode well for the future of the USA Freedom Act, especially since the bill is already contending with a jam-packed schedule for floor time.
“I think it’s certainly going to put a hitch in the step of some people sitting on the fence, not knowing whether they want to vote for the Leahy bill or not,” said Gary Schmitt, a former Senate Intelligence Committee staffer and current co-director of the American Enterprise Institute’s security studies center.
“I suspect that [Senate Majority Leader Harry] Reid’s [D-Nev.] not going to put forward a bill that might take a lot more floor time than he’s got,” he added.
The USA Freedom Act would end the NSA’s bulk collection of Americans’ phone records — the most controversial program disclosed by Snowden last year. Critics say the program is a gross invasion of privacy, but supporters contend that it is necessary to connect the dots between possible terrorist threats.
The bill would also add new provisions allowing tech companies to disclose the requests for information they get from the government and creates a team of people to argue positions in favor of privacy and civil liberties to the secretive federal surveillance court, which currently only hears arguments from the government.
The fate of the bill could hinge on Sen. Dianne Feinstein (D-Calif.), the Intelligence Committee chairwoman who has so far appeared somewhat skeptical of it.
She is currently working with Leahy on some aspects of the bill, but is committed to moving forward this year. Her support could be crucial in convincing Senate leaders to make time for the legislation.
“We’ve been trying to reconcile a couple of differences and so that’s what’s happened so far,” Feinstein said this week. “But I want a bill. I’ve been here long enough to figure out you can’t impose your individual will; there comes a time when you comprise to get something done.”
She stressed that NSA reform would not need to undercut the intelligence agencies as they battle threats from ISIS and other terrorist groups.
“I wouldn’t [want to impede their work], but I think it can be done without that,” she said.
So far, the legislation has attracted a wide swatch of supporters, including voices are far apart as Tea Party darling Sen. Ted Cruz (R-Texas) and liberal Sen. Ed Markey (D-Mass.). Privacy advocates and tech companies have also loudly supported the measure, saying that it would protect civil liberties while also restoring people’s trust in tech firms whose profit margins have been ravaged by public distrust.
In a letter to Leahy earlier this month, Attorney General Eric Holder and Director of National Intelligence James Clapper wrote that the USA Freedom Act “preserves essential Intelligence community capabilities” and is “a reasonable compromise that enhances privacy and civil liberties and increases transparency.”
Still, Sen. John McCain (R-Ariz.) — who said there was “no consensus” in favor of the bill — predicted that the congressional support would start to fall off as the Obama administration’s campaign against ISIS mounts.
“I think you’ll see support for it diminish,” he said.
Supporters of the legislation dismissed that notion.
Rep. Jerrold Nadler (D-N.Y.) — a strong backer of the House’s version of the bill — said the suggestion that it could be delayed by the ISIS campaign was “a nonsense comment.”
Sen. Richard Blumenthal (D-Conn.), a co-sponsor of Leahy’s bill, said that the ISIS threat could actually spur movement on the legislation.
“The argument I’d made is I think there’s a strong argument that these reforms actually provide more legal fiber and support for a more robust and targeted intelligence and surveillance operation, because they strengthen public support and confidence,” he said. “And there’s nothing about these reforms that detracts from surveillance.”