Some Agreement May Exist Between USA Freedom Act, Feinstein’s NSA Bill, Leahy Says
Two warring Senate proposals on surveillance may have some common ground, one sponsor recently said, days before a hearing expected to touch on the overhauls. Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., took a shot at the legislation of Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., during this weekend’s C-SPAN Newsmakers. The Senate was also expected to have addressed a motion Monday after 5:30 p.m. to invoke cloture on the motion to proceed to S-1197, the National Defense Authorization Act, which may be a vehicle for surveillance law updates. Senate leaders have said they want the defense reauthorization bill passed before Thanksgiving.
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"I disagree with their legislation,” Leahy said of Feinstein’s bill. “It strikes me as more a status quo [bill]. I don’t find the status quo acceptable. But let’s have votes on it and see where it’s going to go. I'll abide by those votes. But I can tell you right now, I will not vote for the status quo. I don’t think it makes us safer.”
The congressional battle comes as the Supreme Court on Monday declined, without comment, to review the Electronic Privacy Information Center’s challenge to the National Security Agency phone metadata surveillance (http://1.usa.gov/1f8Stsa). EPIC is “disappointed” in the court decision, EPIC President Marc Rotenberg said in a statement (http://bit.ly/1ip7KEX): “There is simply no way to establish relevance for the collection of all telephone records on all U.S. telephone customers for an intelligence investigation.” The government was also expected to have released on Monday several NSA documents and Foreign Intelligence Surveillance Court (FISC) opinions on how authorities use Patriot Act Section 215, which authorizes the phone metadata collection, according to the Electronic Frontier Foundation (http://bit.ly/1bV8mgM), which had filed a Freedom of Information Act request two years ago for such documents.
Leahy recently introduced the USA Freedom Act (S-1599) -- its House counterpart is HR-3361 -- which proposes to end the government’s bulk collection of phone metadata and curb surveillance in other ways. Feinstein, also a Judiciary Committee member, introduced the FISA Improvements Act, S-1681, which would preserve the bulk collection and cleared Senate Intelligence Oct. 31, despite significant tension within that committee. A Senate Intelligence report last week (CD Nov 18 p18) showed sharp debate behind the 11-4 vote by which the FISA Improvements Act cleared the committee, including a serious split on whether to limit the number of years the government can retain people’s data. One failed amendment to that act would have limited that time frame to three years, while another failed amendment would have killed any time limit at all. The current standard is five years. Privacy advocates slammed Feinstein’s bill (CD Nov 4 p10). Leahy said he didn’t know whether the divide between the two bills would prevent any legislation from passing.
But Leahy pointed to common goals in both bills, describing his desire for more FISC opinions disclosed as well as an advocate position created. “Some of these things I think Sen. Feinstein and I can end up agreeing on, and that would be a good step forward because then they'd tend to pass,” Leahy said. He called Senate Intelligence “an important committee” and Feinstein a friend. Leahy would not be bothered at all if the NSA chief position were stripped of its Cyber Command responsibilities, nor if the NSA head were a civilian, he said. But the NSA chief needs to be Senate-confirmed, “a scenario where both [Feinstein] and I would agree,” he added.
Leahy is unsure of the votes the USA Freedom Act would receive in his committee. “Do we have enough? I don’t know,” Leahy said. “We'll find out when we mark it up. ... I want to have real up-and-down votes.” Whether it’s the USA Freedom Act or Feinstein’s FISA Improvements Act, any surveillance updates will need to clear Senate Judiciary in votes that will be open and public, Leahy said. A spokesman for committee member Al Franken, D-Minn., told us Franken is focused on getting his own surveillance legislation passed. Senate Privacy Subcommittee Chairman Franken introduced the Surveillance Transparency Act, S-1621, Oct. 30 and held a subcommittee hearing on it earlier this month. Transparency is a Franken priority, the spokesman said. Senate Judiciary ranking member Chuck Grassley, R-Iowa, is still gathering information before deciding where he stands on “the right balance between privacy and national security,” his spokeswoman said, declining to say whether Grassley favors the Leahy or Feinstein proposal.
Other committee members did not comment on where they stood. The USA Freedom Act has 18 co-sponsors in the Senate and has “bipartisan” support, Leahy said. Ron Wyden, D-Ore., a Senate Intelligence member and outspoken NSA surveillance critic, is now a co-sponsor of the Leahy bill (CD Nov 6 p9), Leahy said. The Judiciary Committee has 18 members, including the USA Freedom Act’s sponsor and four co-sponsors, as well as Feinstein, sponsoring her own FISA Improvements Act. Leahy plans a Senate Judiciary hearing on surveillance law Thursday following a 10 a.m. executive business meeting in 226 Dirksen. Witnesses are NSA Deputy Director John Inglis, Deputy Attorney General James Cole, and Office of the Director of National Intelligence (ODNI) General Counsel Robert Litt.
The USA Freedom Act’s author in the House -- Judiciary Crime Subcommittee Chairman Jim Sensenbrenner of Wisconsin -- is a conservative Republican and Leahy is a liberal Democrat, Leahy noted. The House version is now up to 95 co-sponsors, with two Democrats adding support Friday and seven other members Wednesday. Sensenbrenner will deliver a keynote on surveillance updates Tuesday at an event hosted by the Georgetown Law Center on National Security and the Law as well as the National Security Law Society. ODNI’s Litt will speak on a panel there.
Leahy warned against NSA defenders who say the programs are necessary to prevent another Sept. 11-style terrorist attack. Feinstein has on multiple occasions invoked Sept. 11. “Now they say, we've got to spy on everything you do to stop another 9/11,” Leahy said. “Well, that’s not the question to ask. The question is how much of your privacy are you willing to give up.” (jhendel@warren-news.com)