Status of Proposed House Intel NSA Bill Contested Within Committee

"We had the ground cut out from under us,” Himes said in an interview last week. “It’s been largely taken out of the hands of the Intelligence Committee.”

A GOP leadership aide disputed the notion. “We are still working with the Judiciary and Intelligence committees, as well as other interested members,” the aide said Friday.

"The notion that FISA has been taken from the intelligence committee is flat wrong,” a spokeswoman for House Intelligence Committee Republicans told us. “Leadership is working with the House Intelligence Committee to advance a proposal that can gain broad support.”

In the second half of 2013, members of Congress introduced more than two dozen bills to update surveillance law, with top overhauls expected in the Judiciary and Intelligence committees in both chambers and already introduced in three of those four. House Intelligence is the exception. Privacy advocates and others have long awaited the planned House Intelligence National Security Agency bill, mentioned by committee leaders through November. Advocates have expected a bill similar to the one Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., cleared from committee Oct. 31 -- the FISA Improvements Act, criticized for its alleged softness and codification of the Patriot Act Section 215 phone surveillance.

House Intelligence members, in putting together drafts, had heard from FISA judges, national security officials and others, Himes said. Committee Democrats had “settled on a package we agreed on,” which included many of the recommendations the White House-appointed surveillance review group later suggested in a Dec. 18 report, such as a FISA court advocate and an easier way for companies to disclose the government surveillance requests they receive, he said. This Democratic members’ package might have encountered “some resistance” from Intelligence Committee Chairman Mike Rogers, R-Mich., Himes said. Despite “less visibility” into Republicans’ activities, they were busy at work with draft proposals, too, Himes said. “The end product coming out of Intel probably would have looked something like what Feinstein was working on in the Senate,” Himes said.

On Nov. 21, the leadership aide told us leadership had taken an interest in moving NSA legislation and cited the split committee jurisdiction over FISA and a goal to ensure a “well-coordinated process with all interested parties” in weeks ahead (CD Nov 22 p19). “I remain committed to continuing to work with members to move a FISA bill forward,” Rogers said in an opening statement to a closed markup session made public that same day (http://1.usa.gov/1e7or45), citing committee work on such a bill in “recent months.” On Nov. 27, committee Democrats said, as part of an intelligence authorization bill report (http://1.usa.gov/1dHUZB6), that the committee tries to operate in a bipartisan way and its Democrats are “committed to continuing to work on reforms in a separate bill to enhance transparency and privacy while retaining critical national security capabilities.” But Himes said leadership told Rogers “that we weren’t doing a bill,” to Himes’ understanding. Himes described the process as “shut down” and any discussion of an NSA proposal now “academic” in nature. A spokeswoman for committee Democrats declined comment.

The office of committee member Lynn Westmoreland, R-Ga., questioned Himes’ characterization. His spokeswoman mentioned both the intelligence authorization bill and the NSA bill the committee had worked on prior to recess. “It was my understanding the bills were essentially put on hold until the start of 2014 due to timing,” she said, describing a busy legislative calendar. “It’s my understanding that both bills will be brought up in the new year."

"The Chairman and Ranking Member have been working together for months on potential FISA changes, including sharing draft language and holding joint meetings and hearings with the IC [intelligence community] and private sector,” the House Intelligence Republican spokeswoman said. “There are a few areas where we have had different ideas about the way the IC might collect, store and access bulk telephone metadata, and we continue to work through those issues. The Chairman has said repeatedly he remains open to constructive ideas to instill confidence in the program as long as those changes don’t effectively kill the counterterrorism benefits we gain from it.” House Intelligence “is not the only player when it comes to making legislative changes to FISA” and “shares FISA jurisdiction with the Judiciary Committee and leadership must always consider that dynamic when advancing any amendment to FISA,” she added.

If the House Intelligence NSA bill does resemble Feinstein’s in the Senate, “members of the House will be reticent to take that step,” Center for Democracy & Technology Senior Counsel Greg Nojeim told us, citing December’s Klayman v. Obama court decision and critical recommendations from the administration’s surveillance review group. The proposed bill that Rogers has described would “codify” phone surveillance and be “a step backwards for civil liberties,” said Nojeim, a USA Freedom Act backer. It would hurt the chances of the Senate’s FISA Improvements Act if a companion bill does not emerge from House Intelligence, he added.

"The tide is turning,” Electronic Privacy Information Center President Marc Rotenberg said when asked about a possible kibosh on the proposed House Intelligence bill. “Support for FISA reform is gaining momentum. The practical consequence is that the proposals for very modest changes are no longer considered the appropriate legislative vehicles."

House Intelligence members may now be more likely to co-sponsor the USA Freedom Act, previously refraining not due to objections so much as a now-extinguished belief in their own committee’s pending proposal, Himes said. The first and only House Intelligence member to co-sponsor the USA Freedom Act so far is Rep. Jan Schakowsky, D-Ill., who did so Dec. 11. “The USA Freedom Act strikes a better balance between protecting our national security and safeguarding the civil liberties,” she said in a statement then, describing active engagement in such discussions over “the last several months.” HR-3361, introduced by Rep. Jim Sensenbrenner, R-Wis., on Oct. 29, now has 117 co-sponsors and would end bulk phone surveillance.

"I support a lot of the measures in USA Freedom,” Himes said, saying he hasn’t made a final decision whether to co-sponsor. Himes now questions whether the metadata collection is effective and whether such programs should be authorized at all, he said.

The USA Freedom Act is unlikely to pass Congress, former White House cybersecurity adviser Chris Finan told us. He led cyber legislation negotiations with Congress for President Barack Obama and is now business development manager for Impermium and a fellow with the Truman National Security Project. He has criticized NSA surveillance practices and backed changes. The USA Freedom Act is unlikely to attract enough support due to the establishment wings of both parties favoring the status quo on surveillance authority, Finan said, also pointing to the coming midterm elections as a factor likely to scare members of Congress away from controversial votes. He suspects there will be cosmetic tweaks instead of any laws curbing authorities and doubts what he calls “reform legislation” will even get to floor vote due to pressure on party leaders.

House Judiciary has “primary jurisdiction over FISA matters,” a Judiciary aide said when asked for comment. The committee “has determined that we need to take legislative action to ensure that they adequately protect Americans’ civil liberties and operate in a prudent manner,” the aide said, declining to say whether House leadership has reached out but reiterating the commitment of Chairman Bob Goodlatte, R-Va., to work with colleagues and leadership.

House Intelligence leaders strongly object to ending NSA surveillance. Rogers and ranking member Dutch Ruppersberger, D-Md., jointly said Dec. 20 that “it is vital this lawful collection program continue” (http://1.usa.gov/1dzB6fv). The statement, from House and Senate Intelligence leaders, mentioned bills “reported by one or both committees” that included measures to “increase transparency of the U.S. intelligence community’s collection programs, improve the security clearance process, and enhance whistleblower protections for intelligence community employees.” Rogers, Ruppersberger and two House Intelligence colleagues debated NSA surveillance in Brussels with European Parliament members in mid-December, the committee said (http://1.usa.gov/1jD87yX). Rogers and Ruppersberger also defended the program while describing NSA bill efforts in opening statements for an Oct. 29 hearing.

Phone metadata, if still used in surveillance programs, should perhaps be held “for shorter periods of time, where warrants are required for particular searches,” Himes said, questioning the current retention period of five years for metadata. The NSA has said it needs metadata for at least three years for effective surveillance. Himes would be “more comfortable” with phone companies retaining metadata rather than the U.S. government, as it does now, he said. “I personally think that’s better than having the NSA hold the information.” Obama brought up the possibility at a Dec. 20 news conference. A five-member review panel Obama had appointed recommended companies hold onto the metadata. Phone companies can’t arrest and prosecute citizens the way the government can, Himes said. But if data responsibilities go to telcos and carriers, “you give up some protections that exist,” he countered, also pointing to recent data breaches affecting the retailer Target.

"It opens it up to more privacy violations when the companies hold it,” Rogers said on ABC’s This Week Dec. 22. “They don’t have someone directly controlling that information. That’s not their job. Their job is to provide service.”

On Dec. 16, Himes introduced what he called a “fairly targeted” fix. The bill, HR-3779, has one co-sponsor, Intelligence colleague Adam Schiff, D-Calif., and would help provide a “critical element of oversight” where there exist a “number of weaknesses,” Himes told us. General surveillance violations -- most “inadvertent” -- are reported to congressional committees when the surveillance operates under Patriot Act statutes but not if the activities happen under Executive Order 12333, Himes said: “That struck me as wrong.” What matters in oversight reporting should be the violations, not the statutes that authorized them, he said. A combination of targeted, carefully thought-out bills is likely crucial in “fixing our surveillance programs,” Himes explained.

House Judiciary is likely to move NSA legislation early in 2014, said Will Adams, deputy chief of staff for Rep. Justin Amash, R-Mich., a USA Freedom Act backer. CDT’s Nojeim is looking toward planned recommendations from the Privacy and Civil Liberties Oversight Board, set to be released in January or February: “What PCLOB recommends will influence the posture of legislation in both parties,” he said.