The Washington PostDemocracy Dies in Darkness

Attack in France shouldn’t blunt drive for NSA surveillance reform

Politicians and Beltway commentators are today consumed in a debate over whether President Obama, in failing to attend the march in Paris, failed to show solidarity with the victims of the terror attack and the cause of free speech in general.

Meanwhile, beyond such hand-wringing over symbolism, the attack could have an actual impact on national security policy here at home: It could make it that much less likely that lawmakers will get serious about reforming National Security Agency bulk surveillance of Americans’ communication records.

When House Dem leader Nancy Pelosi appointed Dem Rep. Adam Schiff of California as the ranking member of the House Intelligence Committee last week, it was an interesting choice, because Schiff has been an aggressive advocate on civil liberties issues and critic of the Obama administration’s national security overreach.

In an interview today, Schiff told me that those who are hoping for reform of bulk metadata collection need to remain vigilant against the possibility that lawmakers will seize on the Paris horror to blunt the case for change.

“Some will argue that the events in Paris make it impossible to reform any of our intelligence gathering programs,” Schiff said. “But as long as we can accomplish these reforms bolstering our privacy, while maintaining our security, we should do so.”

Some officials, such as Senator Marco Rubio and former NSA director Michael Hayden, have already argued that the attack should slow reform. As Hayden snarked on MSNBC after the attack: “That metadata doesn’t look all that scary this morning.”

A year ago, President Obama — after coming under withering pressure in the wake of the Edward Snowden revelations — came out for reforms of NSA bulk surveillance, including the legal process by which the government can query metadata. But the most significant reform he called for — removing the metadata itself from the government’s hands and placing it under the control of phone companies or a third party — has been left to Congress to carry out.

The push for reform was filibustered in the Senate last year, but lawmakers may once again be forced to confront questions about what to do about the program. That’s because the section of the Patriot Act that is the basis for the surveillance program is set to expire on June 1st. While there are some indications the program might be able to continue in some form even without Congressional authorization, there will be a Congressional debate over whether to reauthorize it, and whether to reform NSA surveillance in the process.

GOP Rep. Devin Nunes, the chairman of the House Intel Committee, is now saying the programs should, in fact, be reauthorized. Those who agree are likely to seize on the Paris attack to bolster that case. But Schiff argues that the attack shouldn’t blunt our zeal for reform.

“The issue isn’t whether we want the capability of tracking,” Schiff says. “The question is, Who gets to hold on to the data? Should the government be gathering the data? As long as we can still get the data from the providers in a timely way — and we can — there’s no need for the government to gather domestic call data on millions of Americans who have no connection to terrorism.”

The revelations about NSA bulk surveillance raised hopes that an alliance of civil liberties progressives and libertarian conservatives concerned about national security overreach could come together to force reform. But plainly momentum has flagged. House GOP leaders — with the complicity of some Democrats who oppose reform — may simply move for a vote to reauthorize the program. It’s also an open question how hard Obama will push Congress to pursue changes to it. And with some lawmakers seizing on the France attack to kill all hopes of reform, it remains to be seen whether that left-right coalition can make anything happen.

Still, in one sign that hopes may not all be lost, libertarian Senator Rand Paul is still calling on Congress to act, telling reporters: “We still are interested in tying to end the bulk collection of data.”

“Rand Paul speaks for a lot of libertarian members of Congress, and you’re still going to see the alliance between libertarian Republicans and civil-liberties-oriented Democrats,” Schiff says. “We’re going to have a vote, and if [Congressional leaders] try for straight reauthorization, they will have a lot of trouble. There was a lot of momentum last year, but it dissipated somewhat. But I still believe voices for reform in the House are a majority.”