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Congress Falls Out of Love With the Surveillance State

Eli Lake is a Bloomberg View columnist. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.
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Congress is poised for the first time since 9/11 to take back some of the extraordinary powers it granted to the executive branch. The courts have scrapped military tribunals for detainees and President Obama has ended water boarding. But Congress has pretty much been a rubber stamp during the war on terror.

Not anymore. After resisting efforts from some in his own party and the House of Representatives to revoke the NSA's authority to collect telephone records in bulk, Senate Majority Leader Mitch McConnell said Tuesday he will allow a vote this week on the USA Freedom Act. That bill would end the NSA's bulk collection of telephone metadata, but allow the NSA and FBI to query this data stored by the phone companies.

The closest Congress has come to doing anything like this was in 2008 and 2012 with the passage and reauthorization of amendments to the Foreign Intelligence Surveillance Act. But in those cases, Congress codified government programs to monitor Internet communications and required more oversight of them. This time around -- if the Senate passes the USA Freedom Act -- Congress will be ending a government program altogether.  

"This is not just instituting layers of oversight on a collection program," Mieke Eoyang, the director of the national security program at Third Way, told me. "This is taking away from the NSA's custody a bunch of data that they gathered on every American and had unfettered access to."

Republican leaders in the House and Senate did not plan for things to turn out this way. Representative Devin Nunes, the chairman of the House Intelligence Committee, initially favored reauthorizing the NSA's bulk collection authority spelled out in section 215 of the Patriot Act. Nunes arranged top secret briefings on the NSA program to educate fellow lawmakers on what he saw as an effective counter-terrorism tool.

And in some ways this was a safe bet. Over the opposition of a new faction inside the Republican Party led by libertarians like Senator Rand Paul and Representative Justin Amash, Congress was still able to keep many of the post-9/11 intelligence programs in place. In 2012, Congress renewed the FISA Amendments Act. Congress has also yet to limit or revoke the font of these extraordinary powers, the 2001 Authorization for the Use of Military Force. The authorization for the Iraq war is still on the books.   

But earlier this month, Nunes began to realize the House GOP leadership didn't have the votes for a clean reauthorization of the bulk collection program. In the meantime, the House Judiciary Committee on April 30 approved the USA Freedom Act, to curtail bulk collection.

Then came a blistering decision from the U.S. Court of Appeals for the 2nd Circuit on May 7 that ruled the government had gone beyond the law with "sweeping surveillance" of U.S. citizens. And public opinion added pressure on lawmakers: Recent polling has found that only a third of Americans favored allowing the NSA to continue to store and collect their phone records.

There is urgency to act. The Patriot Act provision on NSA bulk metadata collection expires June 1.

Nunes told us the chances of just reauthorizing section 215 of the Patriot Act when an alternative bill was on the floor were slim. He said he reluctantly endorsed the slimmed-down approach to data collection: "Do you want to keep something and hope the changes can work, or risk the whole program going dark?"

To be sure, the new bill still allows the FBI and NSA to search the numbers dialed and times and dates of phone calls to find the confederates of terrorists in the United States. But no longer would the NSA be allowed to store those records. Eventually, President Obama made it known that he favors the changes as well. Nunes told us Obama met with the chairmen and ranking members of the House and Senate intelligence committees last Monday and said he supported the new legislation.

Nunes in his floor speech last week gave qualified support for the legislation to curb bulk collection.  But he warned his colleagues: "This new targeted authority will be slower and potentially less effective than the current program."

The chairman's counterpart in the Senate, Richard Burr, the Republican chairman of the Senate Intelligence Committee, was less temperate. When the House bill passed, he issued a statement saying it "is trying to fix a system that isn’t broken" and "undercuts the Intelligence Community’s capability to stop terrorist attacks here and abroad."

Opponents of the bill raise one technical concern: The legislation gives the NSA 180 days to build a new computer architecture for querying the phone company databases. It's a tricky matter. Phone companies store the records of only their customers, whereas the NSA stored all of these records in one database.

Even Representative Adam Schiff, the ranking Democrat on the House Intelligence Committee and a supporter of the bill to curb bulk collection, acknowledged this could be a problem. Speaking to reporters Tuesday at a breakfast sponsored by the Christian Science Monitor, Schiff said: "I think if we reach an impasse on the authority sunsets, then the NSA will have some responsibility for that breach. I have been urging the NSA for quite some time now to begin the process for developing the process to take data from different providers so they can talk to each other."

Michael Hayden, who served as the chief of both the CIA and the NSA under President George W. Bush, said the new system will be a "leap into the unknown." He said we just don't know how feasible it would be to query data kept by different phone companies. "This is somewhere between it doesn't matter and this will be good enough," he added.

Others however are not buying this objection. Chris Soghoian, the chief technologist for the American Civil Liberties Union, told me: "The NSA is the one part of the government that can go toe to toe with Silicon Valley and win. For any new system, someone needs to sit down and write code. Every single thing they do requires the NSA to write new software." He said he saw no reason the NSA could not come up with a technical fix for querying different telecom databases.

By Tuesday afternoon, even some of the most ardent supporters of the NSA program began to see their majority had dwindled. McConnell himself was one of those ardent supporters. On Sunday he told ABC News that the House legislation "basically leads us to the end of the program." On Tuesday he conceded that to hold out for reauthorization of bulk collection, and in the process let the Patriot Act expire, "is not a responsible thing to do."

Senator John McCain, the Republican chairman of the Senate Armed Services Committee, was of a similar frame of mind. On Tuesday McCain told reporters: "I am ready to negotiate something that we can agree to. The worst case is that it just expires." 

(Corrects the ninth paragraph with date when the Patriot Act provision on NSA bulk metadata collection expires. It would end June 1, not Friday.)

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To contact the author on this story:
Eli Lake at elake1@bloomberg.net

To contact the editor on this story:
Philip Gray at philipgray@bloomberg.net