Congressional critics of the bulk collection of telephone records by the National Security Agency fear that its allies are circumventing them in the House of Representatives.
The House parliamentarian, who oversees procedural matters, has determined that a new bill that substantially modifies the seminal 1978 Foreign Intelligence Surveillance Act will go through the intelligence committee rather than the judiciary committee, a move that two congressional aides consider “highly unusual.”
Seemingly an arcane parliamentary issue, the jurisdiction question reveals a subterranean and intense fight within the House about the future course of US surveillance in the post-Edward Snowden era. The fight does not align with partisan divides, with both sides claiming both Republican and Democratic support.
The bill, authored by Republican Mike Rogers of Michigan and Democrat Dutch Ruppersberger of Maryland, would largely get the NSA out of the business of collecting US phone data in bulk. Rogers and Ruppersberger, both staunch advocates of the NSA and until now just as staunch defenders of bulk collection, are the leaders of the intelligence committee.
Yet the House judiciary committee thought it was the natural choice for primary legislative jurisdiction over the Fisa Transparency and Modernization Act, introduced on Tuesday. While the intelligence committee oversees US spy activities, the judiciary committee has oversight responsibilities over surveillance law.
The judiciary committee is also a stronghold of support for a rival bill, the USA Freedom Act, two of whose principal sponsors are its top Democrat and a former GOP chairman. The Freedom Act also ends NSA bulk collection, but includes more civil libertarian provisions, such as the prior approval of a judge to force phone companies to turn over customer data and a threshold requirement of relevance to an ongoing investigation to secure such approval.
Ruppersberger, in a press conference on Tuesday, blasted the USA Freedom Act, saying it would make Americans “less safe.”
But the USA Freedom Act, despite also being centrally concerned with intelligence policy, was given primarily to the judiciary committee, raising an expectation on the committee that the same would hold for Rogers and Ruppersberger’s bill despite the committee affiliations of its sponsors.
A congressional aide who would only speak on condition of anonymity said it was “new and different that a bill that amends Fisa wouldn’t come to us first." The House parliamentarian, Thomas Wickham, declined to comment.
Representative Jerrold Nadler, a New York Democrat, issued a statement on Wednesday expressing “deep concern” about the jurisdictional switch.
“I am deeply concerned that today, for what appears to be the first time ever, a Fisa reform bill has been sent first to the House intelligence committee. The House judiciary committee must assert its critically important role with regard to Fisa reform efforts so as to ensure that our constitutional liberties are properly protected as we seek to promote national security,” Nadler said.
The suspicion amongst some Hill staffers is that the next step for Rogers and Ruppersberger, after securing approval from the full intelligence committee, will be to attempt to get their bill to the House floor without putting it before the judiciary committee at all.
Circumventing the judiciary committee, staffers said, would reflect the difficulties Rogers and Ruppersberger would have winning the panel’s backing for their bill.
While on the surface the bill has similarities with the USA Freedom Act, the intelligence leaders’ proposal would not require a judge’s approval before the government compels telecoms or internet providers to turn over customer data, which an aide called a “fatal flaw” of the bill for the judiciary panel.
Yet the USA Freedom Act itself faces significant congressional obstacles.
Despite possessing 142 co-sponsors in the House, the bill has been bottled up in a judiciary subcommittee since January. The committee chairman, Republican Bob Goodlatte of Wisconsin, has given it lukewarm support. Its backers say the bill might be modified or even renamed as a way to shore up its prospects.
Advocates detect hostility from House leadership of both parties, to say nothing of the NSA and the Obama administration. The administration has, to the committee leadership’s frustration, studiously denied expressing any opinion on the bill, which panel members read as opposition.
Both camps are claiming the Obama administration for their own. Rogers and Ruppersberger, appearing to cut off the USA Freedom Act at the pass, declared themselves “very, very close” on Tuesday to a deal with the White House over surveillance. Hours later, Senator Ron Wyden of Oregon, a USA Freedom Act supporter, said Obama’s forthcoming surveillance reform proposals show “it's very clear now that the administration agrees with us.”
But in an indication of the USA Freedom Act’s uncertain course, Wyden, joined by fellow Senate bulk-surveillance critics Republican Rand Paul of Kentucky and Democrat Mark Udall of Colorado, urged the president to end bulk surveillance unilaterally, without recourse to Congress.
All sides are waiting for Obama’s specific proposals, which the administration expects to unveil this week.
The GOP leadership permitted a floor debate in July on an amendment that would have killed NSA bulk surveillance outright, and which came close to passage. The amendment’s architect, Republican Justin Amash of Michigan, backs the USA Freedom Act. But the speaker of the House, John Boehner, came out on Tuesday in favor of Rogers and Ruppersberger’s bill, and Boehner has great influence over what will come to the House floor.
Representatives for Boehner and the House intelligence committee did not return requests for comment.