A carefully crafted compromise proposal to reform the NSA’s warrantless surveillance program is in trouble, with opposition coming from libertarian-leaning conservatives and members of the House Intelligence Committee.
The House Freedom Caucus appears dissatisfied with the National Security Agency reform measure, which was drafted by a bipartisan group of Judiciary Committee lawmakers led by chairman Bob Goodlatte (R-Va.).
Freedom Caucus members often find common ground with progressives on surveillance issues, potentially putting them in a position to decide the fate of the legislation.
{mosads} “If there is a ground zero for that debate, it’s probably in my caucus,” said chairman Mark Meadows (R-N.C.).
“I don’t know that [the bill] goes far enough. I think there’s still a lot of unanswered questions with regards to Fourth Amendment protections.”
The Freedom Caucus hasn’t staked out an official position on the bill yet, but will likely do so in the next few weeks, Meadows said.
Complicating matters further, the Intelligence Committee isn’t totally on board with Goodlatte’s bill either. Rep. Tom Rooney (R-Fla.), the chairman of the House subcommittee with oversight over the NSA, on Thursday suggested the Intelligence Committee might draft its own bill.
The Trump administration, meanwhile, has been stumping hard for a clean, permanent reauthorization of the NSA wiretapping program. But Goodlatte has said a clean renewal does not have the votes to pass the House.
The dispute centers on a law that lets the government collect emails and text messages sent by foreign spies, terrorists and other foreign targets overseas. Under the law, federal investigators are allowed to search that database for Americans who may have communicated with a foreign target.
The intelligence community calls the program a critical tool in identifying and disrupting terrorist plots. Civil liberties advocates say it infringes on the Fourth Amendment.
The NSA authority is set to expire at the end of this year, giving lawmakers a short timeline to either reform or renew the program.
Goodlatte’s proposal would place modest limits on the NSA by requiring officials investigating ordinary crimes to obtain a court order before viewing the content of any communications collected under that program, including those sent by Americans.
The legislation does not place the same limits on national security investigators, who are believed to use the database far more frequently.
“The bill’s primary reform creates a loophole where backdoor searches of U.S. persons can continue ostensibly for ‘foreign intelligence purposes,’” civil liberties advocacy group Demand Progress wrote in a release commenting on the measure. “This makes it likely that the exception would swallow the rule.”
Critics also say that the Goodlatte proposal places no real restrictions on how information gathered under the program can be shared and used by agencies outside of the NSA, potentially allowing its continued use in criminal prosecutions.
It’s unclear whether Goodlatte’s proposal will even make it out of committee. Multiple Freedom Caucus members sit on the panel, and other privacy-minded Republicans on the committee have also expressed doubts about the bill.
Rep. Ted Poe (R-Texas), who split from the Freedom Caucus earlier this year, said that the legislation makes “progress” on reform but cautioned that more needed to be done.
“I will be talking with like-minded members on the Judiciary Committee in the coming days,” he said in a statement. “Americans should not be forced to sacrifice individual liberty and constitutional rights for false security.”
“It needs work,” Corie Whalen, a spokeswoman for Rep. Justin Amash (R-Mich.), told The Hill in an email.
While Freedom Caucus members say the bill’s reforms don’t go far enough, lawmakers on the Intelligence Committee have the opposite view.
They fear the bill sacrifices crucial national security powers in favor of privacy protections. Intelligence Committee members from both parties warn the court-order requirement, in particular, could hamstring investigators, creating so many privacy hurdles that the program becomes unusable.
“The provisions on querying the database could have an operational impact, so I think we should examine some changes to those provisions,” said Rep. Adam Schiff (Calif.), the top Democrat on the Intelligence panel.
“We want law enforcement and the intelligence community to be able to make queries of the database in a way that protects the country,” Schiff continued. “If we’re concerned about this being turned into a grand database that can be used to prosecute people for unrelated things, then we ought to look more to excluding the use of the contents in non-national security cases, rather than preventing the searches from taking place.”
Several lawmakers warned that if the Intelligence and Judiciary panels can’t come to an agreement on the legislation, the future of the program could be in jeopardy. Although the so-called “backdoor search” provision of the law is a matter of fierce controversy, members don’t dispute the value of the program as a counterterrorism tool.
Schiff said he’s confident that the divide between the two panels can be bridged.
He noted that in previous successful surveillance reform efforts, legislation has begun in the Judiciary Committee, with the final product incorporating the Intelligence panel’s wish list.
“I would expect we’ll have the same opportunity to weigh in here,” Schiff said.
Schiff said the divisions needed to be smoothed over quickly to avoid a last-minute scramble.
“Both of our committees have incentive to work this out and to do so sooner rather than later, because if we don’t, if we bump up against the deadline, there will be pressure to have a clean reauthorization,” Schiff said.
“We need to hammer this out.”