Since the revelations from leaked documents provided by Edward Snowden, a US government contract employee, American intelligence practices have become a subject of international controversy. While the US Congress will likely impose some regulatory reforms, legislative action will probably not happen before next year.
Uncertainty over international affairs could further complicate efforts for Congressionally-mandated change. The United States is deeply concerned over Russian activities in the Ukraine, unsettled conditions in the Middle East and North Africa, and a resurgence of transnational terrorist threats. Politicians could well become more wary of seeming to hamstring US intelligence activities at a time of rising concerns over foreign threats.
In 2013, Edward Joseph Snowden, a system administrator for the Central Intelligence Agency, disclosed classified documents from the National Security Agency to several journalists, including Glenn Greenwald, who first reported on intelligence practices described in the material in The Guardian. The most notable revelations concerned two classified programs.
Section 215 of the USA PATRIOT Act of 2001 (amending Title V, Section 501 of the Foreign Intelligence Surveillance Act) addressed government access to “certain business records” for foreign intelligence and international terrorism investigations. This authority was used to establish a program that collected telephone metadata (the number of the caller and receiver and how long the call lasts) that could be queried for intelligence or terrorism investigations.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) establishes procedures for intelligence collection “Targeting Certain Persons Outside the United States Other Than United States Persons.” James Clapper, the American Director of National Intelligence, described the programs conducted under 702 as the “collection of communications” to obtain “important and valuable foreign intelligence information …used to protect our nation from a wide variety of threats.”
Within the US, Section 215 was seen as the most controversial. The American Civil Liberties Union, a US public interest group, complained the law gave “the power to spy on ordinary people living in the United States, including United States citizens and permanent residents.”
On the other hand, overseas Section 702 programs were the main targets of criticism. In July of last year, the European Parliament passed a resolution calling for a range of possible punitive actions in response to the US intelligence collections program. The controversy was exacerbated by further revelations suggesting US intelligence agencies had spied on foreign officials from friendly and allied countries, including Germany and Brazil.
Within the US Congress, US intelligence actions have been the target of numerous hearings and investigations. In addition to the attention given to programs authorized by Sections 215 and 702, the majority staff of the US Senate Intelligence Committee has drafted a long report on US practices related to detention and interrogation activities after the 9/11 terrorist attacks on New York and Washington. The release of that report and the CIA response to the report are pending the completion of the security review by the Intelligence Community.
Further straining the relations between Congress and the Intelligence Community are charges that CIA employees spied on Senate Intelligence Committee staff. The charges stem from efforts by agency personnel to recover documents that had been inadvertently disclosed to the staff. More damaging than the actual activities themselves, which the CIA admitted were “improper,” were allegations that the Director of the agency, John Brennan, had misled members Congress in his response to queries over the allegations.
These controversies have increased pressure for Congress to exercise more forceful oversight of foreign intelligence collection activities. Indeed, for several months Congressional leaders and the administration discussed a compromise whereby Congress would withdraw the government’s authority to collect telephone metadata and require warrants to seek this information from service providers. In return, Congress would preserve the government’s authority to collect intelligence under Section 702. Congress has a perfect vehicle to implement these reforms. Some of the authorities under FISA must be reauthorized by law to remain valid.
One obstacle to moving action forward has been ongoing jurisdictional disputes between the Intelligence and Judiciary Committees in both houses, which have established independent agendas. Additionally, there is a reluctance to open legislation to an amendment process out of concern the administration and Congressional leadership might “lose control” of the process, resulting in changes to authority that might unduly hamstring US intelligence operations.
Despite these concerns, several major reform bills have been proposed and Congressional leaders have signaled several times they planned to bring a compromise, bi-partisan bill up for a vote, the most likely candidate being the USA FREEDOM ACT (S.2685).
But that legislative effort suffered a setback on August 5, when John Bates, the Chief judge of the FISA court, wrote the chairman of the Senate Judiciary Committee, concluding that implementing the reforms demanded in the bill would simply be impractical.
An additional concern for legislators is the limited time available in this legislative session, which terminates at the end of the calendar year. There had been hopes that Congress would act when members returned from their long summer recess. That now appears unlikely.
Congressional leaders have discussed forcing a “lame duck” session following national elections in November. Congress might try tackle the issue then but, most likely, because of the controversy over the measures and the press to address other legislative priorities, that is not likely to happen.
Many in the Congress and the administration would prefer to push off the FISA reauthorization effort as long as possible. That could mean no Congressional action till next spring.
There are other wild cards that could impact efforts to restructure authorities or Congressional oversight. One clearly is the international situation. After 9/11, the US government received enormous criticism for erecting “firewalls” that prevented intelligence sharing which might have helped prevent the attacks. If this government enacts additional restrictions on intelligence activities and the US suffers another significant foreign policy reversal, politicians could be open to similar criticisms. This prospect may have a “chilling” effect on legislative efforts.
In addition to increasing concerns about the threat the Islamic State (formerly ISIS) poses for sparking a new round of transnational terrorism, recently the former members of the 9/11 Commission released their assessment of progress ten years after their initial report. Among the areas of concern they list include questions over the effectiveness of current intelligence activities.
Another concern is that Greenwald may hold additional intelligence materials that he could publish with more embarrassing revelations for the US government. Any “reform” efforts might quickly be subsumed in a new round of allegations and criticisms.
Congress will likely push off action until next year. When reauthorization does happen, they are likely to jettison or modify authorities under Section 215. That would play well with domestic concerns and likely would not be a crippling blow to US intelligence or counterterrorism activities. At the same time, the tenures of the Director of National Intelligence, James Clapper, and CIA Director John Brennan could both be tenuous. Another serious intelligence setback or embarrassing revelation could well force the President to mute criticism by forcing the resignation one or the other.
James Jay Carafano, Ph.D., is vice president of defense and foreign policy studies for The Heritage Foundation.