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02Jun15

Congress turns away from post-9/11 law, retooling U.S. surveillance powers

Congress on Tuesday rejected some of the sweeping intelligence-gathering powers it granted national security officials after the 9/11 terrorist attacks, with the Senate voting to end the government's bulk collection of private telephone records and to reform other surveillance policies.

The bill, known as the USA Freedom Act, passed on a 67-to-32 vote, against the will of Senate Republican leaders who wished to preserve existing spy programs.

The opposition to the bill, led by Majority Leader Mitch McConnell (R-Ky.), prompted an intraparty standoff that exposed sharp splits along philosophical and generational lines, and between the two chambers on Capitol Hill. The standoff led to a two-day lapse in the legal authority for those programs.

The bill passed by a wide margin in the House last month but languished as those who sought to maintain the status quo, led by McConnell, tried to stare down Sen. Rand Paul (R-Ky.) and the other senators who supported either ending or reforming the most controversial provisions of the surveillance programs.

"It does not enhance the privacy protections of American citizens, and it surely compromises American security by taking one more tool from our war fighters, in my view, at exactly the wrong time," McConnell said Tuesday, minutes before colleagues rejected a series of amendments he favored.

The USA Freedom Act represents the first legislative overhaul passed in response to the 2013 disclosures of former National Security Agency contractor Edward Snowden, who revealed the NSA's bulk collection of telephone "metadata" and the legal rationale for it -- the little-noticed Section 215 of the USA Patriot Act, passed in the months after the Sept. 11, 2001, attacks.

The new legislation places additional curbs on that authority, most significantly by mandating a six-month transition to a system in which the call data -- which includes call numbers, times and durations -- would remain in private company hands but could be searched on a case-by-case basis under a court order. One supporter, Sen. Patrick J. Leahy (D-Vt.), described the legislation as "the most significant surveillance reform in decades."

"We've done it by setting aside ideology, setting aside fear-mongering," said Leahy, the top Democrat on the Senate Judiciary Committee. "We'll protect the security of the United States, but we'll also protect the privacy of Americans."

President Obama, who signed the bill into law Tuesday night, said in a statement earlier that he was "gratified that Congress has finally moved forward with this sensible reform legislation." But he also denounced the "needless delay and inexcusable lapse in important national security authorities" that preceded its passage.

That delay was prompted by a strategic misstep by McConnell, who believed that the Senate would unanimously agree to extend the current law for at least a short time while colleagues hashed out revisions to the House bill. He misread the willingness of some members -- particularly Paul, his fellow Kentuckian whom he has endorsed for president -- to prevent any short-term extension, not to mention the unwillingness of most members to preserve the status quo.

"The votes just weren't there," said Sen. Mike Lee (R-Utah), who broke with party leaders to support the House bill.

Paul launched an 11-hour filibuster last month against the Patriot Act extension, then lodged a dramatic series of floor objections to foil McConnell's efforts to secure quick agreement on stopgaps.

Because Senate rules make it impossible to quickly pass any measure without unanimous consent, and because McConnell chose to use floor time in recent weeks to tackle other bills, Paul succeeded in forcing the expiration of Section 215 and two other portions of the Patriot Act -- a feat that his presidential campaign repeatedly trumpeted in fundraising solicitations.

"This is the Senate, and members are entitled to different views, and members have tools to assert those views. It's the nature of the body where we work," McConnell said Tuesday morning. "But what's happened has happened, and we are where we are. Now is the time to put all that in the past and work together to diligently make some discrete and sensible improvements to the House bill."

Those "improvements," however, threatened to further delay passage of the legislation. Any change would have sent the bill back to the House, where its fate was uncertain.

Leaders of the House Judiciary Committee -- which crafted the USA Freedom Act on a bipartisan basis with intelligence officials, civil libertarians and telecommunications companies -- said in a statement before Tuesday's votes that the House was "not likely to accept the changes proposed."

They included extending the transition away from bulk collection to one year in order, in McConnell's words, to "ensure that there is adequate time .?.?. to build and test a system that doesn't yet exist." Another required telecom companies to notify the government if they change their data-retention policies.

McConnell played down the House threats, saying the Senate reserved the right to act as it saw fit, regardless of the pending lapse in surveillance authority. "You'd think it was the Ten Commandments," he said of House leaders' insistence that the bill pass without changes.

On the Senate floor, his allies continued to rail against the House bill, arguing that it would hamstring the national security apparatus at a time of significant and emerging global threats.

Sen. Richard Burr (R-N.C.), chairman of the Senate Intelligence Committee, called Snowden a "traitor to the United States" who has "put the lives of Americans and foreigners at risk," while Sen. Susan Collins (R-Maine) doubted whether the new system established by the bill would do any more to protect Americans' privacy by keeping the records out of government hands.

"The telecom companies sell our personal data, including our names, our phone numbers, our addresses, to the highest bidder for telemarketing and other purposes, and some of that data ends up in the hands of con artists," she said, adding, "The fact is that the House bill substantially weakens a vital tool in our counterterrorism efforts at a time when the terrorist threat has never been higher."

But in the end, enough Republican senators joined with Democrats to spurn McConnell's proposed changes and pave the way for final passage of the unamended House bill. On final passage, 23 Republicans joined 43 Democrats and independent Angus King (Maine) in favor.

The strong showing of Republican support emboldened McConnell's critics across the aisle. Sen. Charles E. Schumer (D-N.Y.) said he "bungled this issue from start to finish."

"This bill found a balance rarely seen in this body," he said. "Democrats from the most liberal to the most conservative Republicans, tech, security, law enforcement, privacy interests, all agreeing on a bill. And Senator McConnell can't bring himself to support it. He can't bring himself to see the handwriting on the wall."

Just before the final vote around 4 p.m. Tuesday, McConnell took the floor to defend his moves to preserve the existing surveillance programs. He also lambasted Obama's foreign policy, calling the end of the phone-data program the latest in a series of missteps that includes his decisions to withdraw troops from Iraq and Afghanistan and to seek the closure of the Guantanamo Bay prison camp.

"The pattern is clear," McConnell said. "The president has been a reluctant commander in chief."

Less than an hour later, House Speaker John A. Boehner (R-Ohio) issued a statement praising the Senate's passage of the bill, calling it "critical to keeping Americans safe from terrorism and protecting their civil liberties."

"I applaud the Senate for renewing our nation's foreign intelligence capabilities, and I'm pleased this measure will now head to the president's desk for his signature," Boehner said.

Joining in the praise were civil libertarians, who saw vindication for Snowden in the congressional action.

Jameel Jaffer, deputy legal director of the American Civil Liberties Union, called the passage of the bill a "milestone" and "an indication that Americans are no longer willing to give the intelligence agencies a blank check." But he also said the USA Freedom Act does not go far enough to curb government surveillance powers.

Steven Aftergood, director of the Federation of American Scientists' Project on Government Secrecy, said most criticism in the wake of the Snowden disclosures was directed at the NSA and toward the presidential administrations that oversaw it. But Congress is not above reproach, he said.

The bill's passage, he said, "is a tacit admission that Congress was wrong to allow the Patriot Act to be used for bulk collection."

[Source: By Mike DeBonis, The Washington Post, 02Jun15]
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Privacy and counterintelligence
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