19 months before deadline, lawmakers draw battle lines on spying powers

Members of Congress are starting to put down markers in a major battle over U.S. spying powers that it expected to drag on for more than a year.

The early action appears to reflect an effort by leading Republicans and national security hawks to get out in front of privacy advocates who want to restrict the National Security Agency’s power to collect reams of data about foreigners suspected of being spies, terrorists or other targets.

{mosads}Information about an unknown number of U.S. residents is also included in sweeps authorized by Section 702 of the Foreign Intelligence Surveillance Act.

The law must be renewed by December 2017, but the Senate Judiciary Committee on Tuesday held a hearing on the issue 19 months before that deadline.

“I’d like to begin a conversation about it well in advance of that reauthorization,” Chairman Chuck Grassley (R-Iowa) said at the start of Tuesday’s hearing.

Recent terror attacks in Paris, Brussels and San Bernardino, Calif., he said, “underscore that one of the responsibilities of our government is to ensure that those who protect us every day, including the intelligence community, have the tools to keep us safe.”

The law undergirds high-profile spying activities such as the PRISM and Upstream programs, but many of the details about its use remain in the shadows.

“We’re still missing a lot of facts about Section 702 implementation,” Sen. Patrick Leahy (D-Vt.), the committee’s ranking member, said on Tuesday.

“It sweeps up a sizable amount of information about Americans who are communicating with foreigners,” he added. “Despite these concerns about Americans’ communications being swept up, we still do not know how much of our data is collected under this authority.”

Despite repeated requests from Capitol Hill, intelligence officials have given no estimates of the number of Americans whose communications are caught up in warrantless government searches targeting foreigners. Because of the global nature of the internet, privacy advocates have warned that the number could be high.

Director of National Intelligence James Clapper has bristled at calls to estimate how many U.S. residents have their data swept up by the program, saying it would be difficult to calculate. 

Leahy and a small handful of Democrats appeared open to modifications requiring officials to obtain a warrant before searching for data on citizens.

But any effort at reform appears primed to run into stiff opposition from lawmakers in both parties, given the broad consensus about the importance of the data gathering for combating terrorism.

“The question to me is do we want to somehow limit ourselves in terms of access to foreign intelligence in a way that could make us less safe?” asked John Cornyn (Texas), the No. 2 Senate Republican, rhetorically. “That’s an important conversation to have, but I’m pretty clear on where I come down.”

Lawmakers wondered on Tuesday whether implementing new warrant requirements could rebuild “walls” between U.S. surveillance agencies similar to those blamed, in part, for failing to prevent the 9/11 attacks.

And erring too far on the side of individual privacy might keep intelligence officials from finding important information, Cornyn warned. He pointed to examples in which al Qaeda operatives have used words like “wedding” and “marriage” as code words during a terror plots.

“In our zeal to protect love letters, we don’t want to protect terrorists who might use code words to escape scrutiny by the intelligence community,” he warned.

Sen. Dianne Feinstein (D-Calif.), the vice chairwoman of the Intelligence Committee, said that if anything, the government should be more forthcoming about the ways in which Section 702 is used.  

“Those of us who meet two afternoons a week and go over intelligence … see the value of this program,” said Feinstein, referring to the Intelligence Committee’s biweekly meetings. “But I think the general public does not.”

“I really think it is lawful and well-balanced,” she said.

“In my view, it’s only intelligence, lawfully collected, that’s able to prevent another attack in this country.”