National security hawks are finally emerging from their post-Snowden crouch.
Thursday’s passage of a long-fought surveillance bill is the first big legislative win in nearly five years for the national security community, which has faced increasing restrictions ever since former NSA contractor Edward Snowden leaked details about the government’s most secret spying programs.
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The victory came after Republican hawks and centrist Democrats joined forces to push through a long-term extension of the government’s online surveillance tools, despite years of demands for major changes by both privacy advocates on the left and libertarians on the right. The win is all the more remarkable given that less than a year ago, even the spying programs’ most ardent supporters said they expected to swallow some undesirable revisions in exchange for keeping the snooping tools.
“The pendulum has actually swung,” Chris Stewart (R-Utah), who chairs the House’s defense intelligence subcommittee, told POLITICO on Jan. 11, shortly after the lower chamber passed the bill that secured the renewal of the spying programs authorized under Section 702 of the Foreign Intelligence Surveillance Act.
The FISA renewal bill even survived a series of baffling, 11th-hour tweets from President Donald Trump that condemned then praised the GOP leadership’s preferred measure, sending Republican leaders scrambling to retain the support of their on-the-fence colleagues. Trump is expected to sign the bill before Friday night, when a sunset clause kicks in.
“If you look at the threat matrix today, it’s worse than it was six years ago,” Senate Intelligence Chairman Richard Burr (R-N.C.) told POLITICO. “It’s more global, it’s more specific, it’s the reason that we need this program. I think more and more members realize that.”
Privacy advocates reject the narrative that they are starting to lose ground after years of hard-earned victories. Their fight has always been an uphill battle, they note, with congressional and public support usually building slowly over time. And even though their preferred FISA revisions failed, a vocal, bipartisan coterie of lawmakers mounted last-minute charges in both the House and Senate that nearly scuttled the bill.
“We were on the precipice of being able to win,” said Sen. Ron Wyden (D-Ore.), who led an unsuccessful push in the Senate to offer amendments with language that privacy advocates preferred. But then, he said, supporters of the spying powers “came over, they brought the whole intelligence establishment and said things that were just plain wrong.”
“When the American people find out what’s in this, I’m saying, once again, they’re going to be stunned and they’re going to be angry,” Wyden added.
Still, the victory for surveillance hard-liners stands in opposition to a string of policy and legislative wins that privacy advocates have notched since Snowden absconded with his cache of secret NSA documents in 2013.
In January 2014, then-President Barack Obama reacted by curtailing intelligence agents’ ability to search for phone records without court approval and ordered a halt to indiscriminate eavesdropping on friendly foreign governments and ordinary Americans.
In a nod to transparency, the intelligence community set up a Tumblr page where it posts reports and statistics about its surveillance efforts — some of which were eventually required by law.
In 2015, Congress axed the bulk collection of Americans’ phone records, passing the USA Freedom Act over the objections of GOP leaders. Sen. Patrick Leahy (D-Vt.), an advocate of revising the country’s spying laws, called the bill “the most significant surveillance reform in decades.”
And in the courts, Silicon Valley’s tech giants started challenging the government’s power to keep companies quiet about its requests for customers’ personal data, winning several small concessions. Digital rights groups also disputed the legality of the various programs detailed in Snowden’s cache of documents, earning a federal court victory that declared the NSA’s bulk collection of Americans’ phone records illegal — helping put pressure on lawmakers to pass the USA Freedom Act.
Responding to the public’s newfound fears of intrusive government monitoring, tech firms like Apple, Google and Facebook began rolling out strong encryption for their devices and communications platforms, to the consternation of law enforcement.
“We certainly, certainly were hurt by Snowden and the information that he let out there,” said Tom Rooney (R-Fla.), who chairs the House Intelligence Committee’s NSA and cybersecurity subpanel.
Privacy advocates seemed primed to push through another set of desired surveillance restrictions as Congress faced an expiration date for Section 702, which authorizes powerful and important online surveillance tools that can pick up emails, browsing histories and digital chats.
National security leaders say these are some of the government’s most effective instruments for fighting terrorists and gathering intelligence, highlighting plots they say 702 has helped foil. But privacy advocates and civil libertarians worry about the private data that 702 programs hoover up on an unknown number of Americans, meaning officials can browse through citizens’ personal information without a warrant.
Wyden called the current situation an “end run on the Constitution” during a recent floor speech.
The concern was bipartisan on Capitol Hill. Republicans like House Judiciary Chairman Bob Goodlatte (R-Va.) joined with senior Democrats to present a bill that would have required the FBI to get search warrants in certain circumstances before perusing the content of Americans’ communications in the NSA’s 702 database.
Revisionists even got an unforeseen boost from Trump himself, when the president started throwing around largely evidence-free allegations that the Obama administration had spied on Trump Tower and improperly revealed the identities of Trump’s aides in intelligence reports. The accusations had numerous Republicans threatening to withhold renewal of the 702 statute unless serious alterations were made.
But the Trump administration and 702 advocates on the Intelligence committees in Congress mounted a sustained, mostly behind-the-scenes lobbying campaign to keep the FISA statute largely intact. The NSA bused House members out to the agency’s headquarters to witness the 702 programs in action. Senators were invited to Capitol Hill briefings with every major national security leader. Senior intelligence officials even held a rare briefing with reporters.
Swaying uncertain lawmakers took “a lot of one-on-one conversations” to disabuse them of the notion that the 702 statute is being used to spy on individual Americans, Stewart said.
“They’re not listening to your phone calls, they’re not reading your emails,” he said.
Michael Bahar, the House Intelligence Committee’s Democratic staff director until the middle of last year, credited lawmakers and staff across the ideological spectrum for taking the time “to educate, rather than indoctrinate” their colleagues.
Over the course of a few months, momentum started to shift, with House and Senate leaders uniting behind proposals from the Intelligence committees. While the offerings didn’t include everything security hawks wanted, such as a permanent renewal, they retained the tools for six years without imposing the warrant requirements that Trump administration officials warned would be onerous and unnecessary.
Even a last-minute, out-of-left-field Trump tweet that indicated the 702 programs had been used to spy on his staff during the 2016 election couldn’t sink the bill. GOP leaders quickly got the president to reverse course in a follow-up tweet, calming nervous Republicans just hours before the House voted on the bill. The next week, when the Senate voted to advance the bill to a final vote, Director of National Intelligence Dan Coats was on hand to answer any final questions from lawmakers.
“I think there’s a number of additional security [and] transparency measures in this bill,” Senate Majority Whip John Cornyn (R-Texas) told reporters earlier this week. “I think it’s a very good bill.”
But the measures Cornyn touted have done little to assuage critics. On the Senate floor, Wyden blasted the final bill as “a retreat” that was actually worse than the status quo. He later vowed that while security hawks may have won this round, there are more fights on the horizon. It’s a point that 702 adherents readily concede.
“It’s not really a pendulum swing as much as it is part of the start of a very long, complicated discussion on the role of privacy, not just in the United States, but globally,” said Bahar.
Added Burr: “This is minor in comparison to the [privacy] problems with data that technology is going to present the American people in the future.”