Patrick Semansky, File, Associated Press
Remember Edward Snowden? For a while, the National Security Agency’s renegade contractor seemed like the most influential man in American intelligence, even though he’s been hiding out in Moscow. Snowden’s disclosures touched off a wave of enthusiasm in Congress for reforming the NSA’s surveillance practices — and anger overseas when he revealed that American spies were listening to foreign leaders’ cellphone calls.
But now, as Congress counts only a few working days remaining in its year, the momentum toward intelligence reform has slowed. “It’s often not a good idea to legislate when you’re angry,” Michael Allen, a former chief aide to the House Intelligence Committee, told me last week. “The (congressional) leadership may want this issue to cool down a bit.”
And that suits the intelligence agencies just fine. “The best outcome from our standpoint is that nothing changes,” a former top official told me.
The central issue Congress has been wrestling with is whether to place new restrictions on the NSA’s ability to collect records of Americans’ communications. Under current law, the agency can collect almost unlimited “metadata” on telephone calls inside the United States, meaning the phone numbers and times of calls but not the content of conversations. Overseas, the agency can collect the content of calls and email, but it isn’t supposed to look at information about U.S. citizens unless it’s pursuing “foreign intelligence information.”
On a few issues, a rough consensus has emerged. Most members of Congress agree that the NSA needs to disclose more about its activities, mostly through more detailed reports to Congress. And they have produced a blizzard of proposals for reforming the Foreign Intelligence Surveillance Court, which rules on government surveillance proposals, mostly by encouraging the court to add a public advocate to its secret proceedings.
But there’s still deep division over the central issue: Is the NSA collecting too much information?
The leaders of the Senate Intelligence Committee, Sens. Dianne Feinstein, D-Calif., and Saxby Chambliss, R-Ga., have produced a bill that would essentially leave the NSA’s current practices in place but add modest new reporting requirements. But others, including Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, would impose tough new limits.
A bill Leahy has introduced would require the NSA to show that any domestic metadata it seeks is “relevant and material” to an investigation of foreign intelligence or terrorism. Intelligence officials say that would mean the end of the metadata effort — because the program is designed precisely to amass a giant database ahead of time that analysts can check when they acquire, for example, the telephone number of a suspected terrorist.
It’s hard to imagine that Congress will undo a program that Obama administration officials describe as effective against international terrorism. But the NSA hasn’t been its own best advocate. First, officials claimed the agency’s surveillance programs had helped foil 54 terrorist plots; then, as the claim came under scrutiny, they acknowledged that most of those incidents were outside the United States and the role of metadata wasn’t always clear.
The key could be the position President Obama takes after his own in-house intelligence review panel delivers its report, expected next month. But civil libertarians, who have been disappointed by Obama before, are bracing for another letdown.
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