Let Leahy’s NSA Reform Bill Die in the Lame Duck

Senate Judiciary Committee Chairman Patrick Leahy is trying to twist arms in the Senate to win a vote today on his re-write of a House bill (the USA Freedom Act) to reform NSA collection programs leaked by Edward Snowden before Senate Democrats lose their majority.  If he fails, the bill will die and a better one will probably pass in the next Congress.

Although Senate Democratic leaders initially indicated after the election they would try to pass Leahy’s version of this bill in the lame duck session, this is looking less likely due to bipartisan opposition in the Senate and from the White House.  The bill will need 60 votes to overcome a promised filibuster by Senator Saxby Chambliss (R-GA).

Further complicating the state of play on this bill, Politico reported today that Senate Majority Leader Harry Reid will allow amendments.  This could lead to a free for all as senators who think the Leahy bill is too weak, like Rand Paul (R-KY), Ron Wyden (D-OR) and Mark Udall (D-UT) try to strength it and other senators like Diane Feinstein (D-CA) and Saxby Chambliss (R-GA) try to water it down.

Senate action on the bill also will be influenced by an strong op-ed in today’s Wall Street Journal condemning the Leahy bill by former CIA Director Michael Hayden and former Attorney General Michael Mukasey titled “NSA Reform Only ISIS Could Love.”

I wrote last May that the House version of the USA Freedom Act was a delicate compromise in response to strong congressional criticism of NSA programs in light of the Snowden leaks. While many NSA supporters were unhappy about the House bill, it reflects the reality that regardless of the merits and capabilities of the metadata program, it has been so damaged by fear-mongering attacks by the press and some politicians that it cannot continue in its current form.

The House version of the USA Freedom Act would allow the metadata program to continue under significant restrictions.  That wasn’t enough for Leahy.  His bill shuts down this NSA collection program.  Leahy also wants to add privacy advocates to the Foreign Surveillance Court and provide tech companies with additional ways to tell the public about information they are required to give to the government.

The top members of the Senate Intelligence Committee – Chairwoman Diane Feinstein and Saxby Chambliss – believe Leahy’s bill goes too far.  According to The Hill, Chambliss this week called Leahy’s legislation a “terrible” bill.

Senator John Cornyn has said he is “uncomfortable trying to jam through” a bill like USA Freedom during the lame duck session.  White House officials reportedly have expressed a similar view.

Amendments from both sides are unlikely to receive enough votes to pass the bill.  Even if the bill receives the required 60 votes to pass, some of Leahy’s language probably will be removed or watered down during reconciliation with the House.  The result would still be a bad bill that will weaken important NSA collection programs that have stopped terrorist attacks.

Killing both versions of the USA Freedom Act would be a victory for U.S. national security since an NSA reform bill passed by the next Congress probably will be more influenced by major U.S. security threats like ISIS instead of the exaggerated and mostly false claims made by Edward Snowden.  Hopefully a cloture vote on Leahy’s bill will fail today and Congress can start over next year to get NSA reform right.