Killing the NSA Softly

Congressional critics have a quiet, ad hoc strategy for making the spy agency walk back some of its powers.

U.S. Sen. Ron Wyden

Sen. Ron Wyden (D-Ore.) has been working to reduce the NSA’s domestic spying powers.

Photo by Chip Somodevilla/Getty Images

For a few minutes on Wednesday afternoon, Rep. Justin Amash thought he might have killed the National Security Agency’s metadata collection program. He’d optimistically expected maybe 90 Republicans to back his amendment to the Department of Defense budget. Ninety-four of them did. But he ran out of votes eventually—the Democrats didn’t come through—and by a 217–205 margin, the House killed his amendment.

Amash loaded the confetti cannon anyway. “My friends and colleagues stuck with me on my NSA amendment and changed the dynamic of the debate with tonight’s close vote,” the Republican congressman tweeted. “What an amazing staff I have. Thank you, thank you, thank you. You guys are awesome.”

Awesome, even though they lost? Neither party’s leadership, Republicans or Democrats, is particularly invested in challenging the NSA. Rep. Darrell Issa’s House Oversight Committee has held multiple hearings this year on the 2011 attack in Benghazi and on the IRS’s pokey approval of Tea Party tax-exemption applications, but nothing on the metadata scandal that composes the rest of the “Obama administration in tatters” narrative. Senate Democrats are holding a hearing next week on the NSA program, but that’s the point—the hearing is only next week, many news cycles since Edward Snowden arrived in the Moscow airport.

The NSA’s critics, from the libertarian right to the civil rights left, can’t depend on unified action in Congress. They need to poke holes in the national security consensus. They won’t get a new Church Committee, but they can put enough heat on the administration that it changes its standards. That’s what they liked about Amash’s amendment.

“They picked up more Republican votes than any of us thought they would, and that was thanks to Amash,” says Michelle Richardson, legislative director for national security at the ACLU in D.C. “He’s super-smart. His staff is super-smart. They don’t just throw an amendment out there and let the chips fall. They work it on the floor.”

Defenders of the NSA program are furious that Amash even got that far, and are working to undermine him. According to Politico’s Jake Sherman, Amash started this process with an “unworkable amendment” that would have failed easily, until staffers “held his hand” to fix it. That’s their story, but it doesn’t reflect what led up to the amendment. In the wake of Edward Snowden’s disclosures, every member of Congress who’d been sitting on some security state reform picked it back up and reintroduced it. In the Senate, Utah’s Mike Lee (a Republican) and Oregon’s Jeff Merkley (a Democrat) brought back the Ending Secret Law Act that they couldn’t pass when FISA was reauthorized. Oregon Sen. Ron Wyden and Colorado Sen. Mark Udall, both Democrats, introduced legislation to restrict NSA data collection unless the material contained a “demonstrated link to terrorism or espionage.”

At the time, the lack of quick action on those bills suggested that the Snowden story had been a blip. Privacy advocates in Congress now refer to those bills as the first wave, part of a strategy of attrition that will make the current policy politically untenable.

Amash proved the NSA will have to concede some ground when his amendment moved quickly from obscurity to reality to being under attack from the administration. On Monday night, before the Rules Committee voted on which amendments to bring up, Amash was told to meet with Speaker of the House John Boehner on the floor. He returned from that meeting convinced (and surprised) that he’d get a vote after all.

That all happened before 8 p.m on Monday. At 9:20 p.m., House Republicans received this email from the House Intelligence Committee.

Classified Member-Only Briefing
Topic: “NSA Programs”
**Members ONLY**

This meeting will be given at a Top Secret/SCI level and will be strictly Members-Only.

Briefing Team: General Keith B. Alexander, National Security Agency

Note from the Committee: In advance of anticipated action on amendments to the DoD Appropriations bill, Chairman Mike Rogers of the House Intelligence Committee invites your Member to attend a question and answer session with General Keith B. Alexander of the National Security Agency.

That message was the start of a lobbying push that succeeded—while convincing Amash and his allies that they were on the right path. Every relevant committee leader worked the vote. Democratic leaders didn’t whip their conference, leaving that to their ranking member on the intelligence committee, Maryland Rep. Dutch Ruppersberger. Hours before the vote, Ruppersberger’s office emailed Democrats a critical statement from the committee, a pre-emptive attack on the amendment from the White House, and an editorial from the Wall Street Journal titled “Republicans for Snowden.” Democrats were suddenly supposed to be swayed by an article that pointed out that “several former Bush security officials on Tuesday also released an open letter to Congress supporting the NSA programs as lawful.”

Miraculously, all of this worked. A bare majority of the House killed the amendment. But it did so in a way that bucked up the NSA’s critics, convincing them that they could win. “The side of transparency and openness is starting to put some points on the board,” declared Sen. Wyden in a speech this week. The Foreign Intelligence Surveillance Court was something “virtually no one had heard of two months ago and now the public asks me about it at the barber.”

Wyden’s little joke was loaded. After next week, members will spend a month in their districts. The NSA’s critics expect the issues they work on to smolder through August, right in time for a “second wave” of bills. California Rep. Adam Schiff, a Democrat, is ready with a bill that would create a “public advocate” for the FISA court, someone who’d argue for the public when the court was asked for a warrant. Vermont Sen. Pat Leahy, chairman of the Judiciary Committee, has readied a bill to move up the “sunset” of FISA reauthorization from December 2017 to June 2015. There’s no grand strategy for passing these bills. But there’s no grand strategy for stopping them. There’s something quite panicky and ad hoc, something that Amash, Wyden, and 200 other odd members of Congress are no longer moved by.