2 Pairs of Congressional Committees Are About to Throw Down Over NSA Spying

In both the House and Senate, the Judiciary committees want to impose new limits on surveillance -- while the Intelligence committees are lining up to defend the agency.
General Keith Alexander, director of the NSA, testifies before the Senate in June. (Yuri Gripas/Reuters)

Russia granted Edward Snowden a year's worth of refugee status on Thursday, and that may be just enough time to determine whether America's most prominent dissident will achieve his stated goal of dismantling the National Security Agency's "architecture of oppression," as he called it.

A groundswell of congressional support for major new restrictions on the NSA, combined with pressure from the nation's most powerful tech companies, is almost certain to force some of those changes into being.  And the battle lines are already being formed between the judiciary and intelligence committees in both the House and Senate. Firebrand defenders of privacy rights on the judiciary committees are seeking to shut down or fundamentally overhaul surveillance, while Intelligence committee members who tend to stand behind the NSA are trying to preserve as much as they can of what they consider an essential program. 

The ideas range from the extreme, shutting the telecommunication and Internet monitoring programs down altogether — something almost certain not to happen — to more feasible ideas that might preserve the heart of the program but add more transparency to the process. Such ideas include one that is gaining momentum in both the House and Senate — appointing a privacy advocate to take the other side against government requests for surveillance in the Foreign Intelligence Surveillance Court — declassifying portions of the FISA orders, making them available to more members of Congress, and redesigning the phone-records collection program so that the NSA does not take possession of all the data itself.

NSA advocates counter that the vacuuming up of huge amounts of data is technically necessary, in part because of the nature of the diffuse threat of terror from small "super-empowered" individuals or groups [like the Boston Marathon bombers] and the need to jump out a few "hops" beyond their immediate phone contacts in order to detect all of them; and in part because the data is disposed of by the private sector too soon. And they fear that greater transparency of any kind will compromise the program, revealing sources and methods to potential terrorists and teaching them how to avoid surveillance.

But even the most stalwart defenders agree that some changes are likely to come. Those familiar with the thinking of Rep. Mike Rogers, the powerful chairman of the House Permanent Select Committee on Intelligence, say that some privacy concerns will have to be addressed in order to keep the programs functioning. On the Senate side, Saxby Chambliss of Georgia, the ranking Republican on the Intelligence Committee, told ABC's This Week that "I do think we're going to have make some kind of changes to make things more transparent."

Dianne Feinstein, chairwoman of that committee, says that she knows of "no federal program for which audits, congressional oversight and scrutiny by the Justice Department, the intelligence community and the courts are stronger or more sustained." Nonetheless, Feinstein  has already proposed several changes in order to assuage critics, including making public every year the number of Americans' phone numbers submitted as queries of the NSA database, along with the number of referrals made to the FBI and warrants to collect the content of any call; publishing the number of times in a year that any company is required to provide data pursuant to FISA's business records provision; making available to all members of Congress all classified FISA court opinions, in a secure location; reducing the NSA's five-year retention of phone records to two or three years; and employing more liberal members of the FISA court.

At the moment, the House debate seems more energized, with the shockingly close defeat of an amendment that would have effectively defunded Section 215 of the Patriot Act, which allows the government to force telecommunications companies such as Verizon and AT&T to turn over business records if they are deemed "relevant" to a terrorism investigation. The failed amendment would have restricted such searches only to those persons already targeted by a federal probe. Now the odd-bedfellow alliance that collected 205 votes for that bill — consisting of libertarian right-wingers like Justin Amash, R-Mich., and liberal Democrats such as John Conyers, the ranking member of the Judiciary Committee and another Michigander -- are already planning for a counterattack by supporters of the program.

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Michael Hirsh is chief correspondent for National Journal.

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