There are some English phrases that are grammatically correct, but just don’t make sense. “Cubs’ playoff chances.” “User-friendly software.” “Middle East peace process.”
And, pretty close to the top, “Congressional to-do list.”
As Congress moves through its brief September stopover on Capitol Hill, there’s an impressive list of things it won’t do. It won’t act on immigration, it won’t pass a transportation package, it won’t make sure that the government can pay its bills.
And a decade after Oregon Sen. Ron Wyden began warning about surveillance – and more than a year after Edward Snowden revealed the government was collecting more of Americans’ telephone data than Verizon – the Senate seems in no hurry to take up the Leahy bill to limit the we’re-watching-you surveillance of the National Security Agency.
Last week, even Attorney General Eric Holder and Director of National Intelligence James Clapper endorsed the bill – although that may have been on the principle that urging Congress to act is the best way to make sure that nothing happens. There might actually be some impact to the endorsement by Clapper, who recently admitted that the NSA had monitored thousands of phones illegally by accident because of “the complexity of the technology involved.”
Is it more unsettling that the NSA did things it shouldn’t have, or that it didn’t understand what it was doing?
For senators seeking a more technologically sophisticated view, last week five high-tech trade associations wrote Senate leaders in support of the bill, complaining, “As a result of the surveillance program revelations, U.S. technology companies have experienced negative economic implications in overseas markets.”
Or as Wyden puts it, “If a foreign enemy had done to the U.S. economy what NSA monitoring has done, people would be up in arms.”
Still, even with the NSA’s most sophisticated surveillance devices, it’s hard to find signs of life in the Senate. Neither Majority Leader Harry Reid, D-Nev., nor Minority Leader Mitch McConnell, R-Ky., has endorsed the bill. Nor has Intelligence Committee chairman Dianne Feinstein, D-Cal.
“In my view,” Wyden said last week, “this is a debate that should have happened years ago, so the sooner this bill comes to the floor, the sooner these intrusive, unnecessary surveillance programs will finally be reined in.”
The Leahy bill would prevent the government from collecting vast amounts of metadata – information about who Americans called, when they called and how long they talked – and create actual argument before the Foreign Intelligence Surveillance court, which has to (and almost always does) approve requests for surveillance.
“The FISA court is the most bizarre court in the United States, bar none,” says Wyden. “There’s no other court set up to hear from only one side. That’s what gives rise to secret law,” principles based on one-sided procedures never publicly revealed.
On the other hand, last week National Journal suggested that Wyden and Mark Udall of Colorado, the foremost critics of the NSA, weren’t pushing to immediately take up the Leahy bill, either. The attitude extends through Martin Heinrich, D-N.M., and Rand Paul, R-Ky., other members of what Wyden calls the Ben Franklin Caucus – named after Franklin’s warning that those who would exchange liberty for safety deserve neither.
The Leahy bill, although stronger than the version passed by the House last spring, does not address the “backdoor search.” Government agencies have the power to search data on foreign sources; the “backdoor” option lets them check out, without warrant, data on Americans acquired in the course of surveillance of foreign sources.
Wyden calls this loophole “highly important. The FBI uses it so often they don’t keep track.”
Actually, in a letter to Wyden, the NSA said it had used the backdoor to check data content – phone calls and emails – of 198 Americans. The FBI said it didn’t keep t5rack, but thought the number of its uses was substantial.
Nobody thinks the Senate would limit backdoor searches this year – although the House has voted to defund them. But next June 30, the entire Patriot Act lapses, and it needs reauthorization before then – creating an opportunity that might make Wyden content to wait.
“For the first time, the clock favors reformers,” says Wyden. “We have about a year. We have a long way to go on this.”
And, he notes, there’s always the likelihood of more revelations coming out.
As we’ve learned pretty definitively, when Congress isn’t forced to act, it doesn’t. But when it’s under immediate pressure, something can happen.
At that point, even surveillance reform can get onto a congressional to-do list.
At least before the Cubs make the playoffs.
NOTE: This column appeared in the Sunday Oregonian, 9/14/14.