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NSA, Security Issues Forced Out of Defense Debate

Mikulski may not get a chance to debate her proposal to have NSA nominees go through Senate confirmation. (Bill Clark/CQ Roll Call)
Mikulski may not get a chance to debate her proposal to have NSA nominees go through Senate confirmation. (Bill Clark/CQ Roll Call)

The uproar over domestic surveillance and national security issues may die down to a whimper in the Senate this year.

While the annual debate over the defense authorization bill usually provides senators with a megaphone on those and other controversial issues, this year’s bizarre end to November — with Majority Leader Harry Reid, D-Nev., exercising the “nuclear option” to end filibusters on most nominations — served to bury the contentious debate over the National Security Agency’s mass data and intelligence collection on Americans.

Indeed, President Barack Obama is likely to dodge what could have been an uncomfortable fight with many members of his own party over the NSA and other security issues.

For now, the Senate is only scheduled for one more week of work before 2014 arrives, and Reid already has promised to spend some of that time on Iran sanctions legislation in order to clear way for a larger agreement to move the underlying bill. That leaves little room for debating the NSA’s activities and other security concerns. Though the Senate Intelligence Committee approved surveillance changes in a closed-door markup of its annual authorization bill, that legislation is unlikely to pass the full Congress. The National Defense Authorization Act is therefore the last viable vehicle for such changes.

Concerned lawmakers know this, but they are facing an uphill battle to change the political reality. Of the more than 500 amendments offered to the NDAA, these three hot-button proposals would normally get at lot of attention. This year they’re likely to fall by the wayside.

1. Senate confirmation for the NSA director and inspector general: Sens. Barbara A. Mikulski, D-Md., and Dan Coats, R-Ind., have offered an amendment to the NDAA that would require Senate confirmation for both the head of the NSA and its inspector general. The agency has come under fire for overreach in its surveillance tactics, creating unusual bipartisan coalitions hoping to safeguard privacy rights of citizens. Mikulski and Coats are both members of the Intelligence Committee, which earlier this fall approved these exact changes as part of its markup.

“Our provision makes sure that the Senate has a chance to review and question whoever is nominated next as NSA Director in order to add to the confidence of the American people that the hardworking men and women of the NSA are under proper oversight and leadership. It is also vital that the NSA have an objective Inspector General so that he or she can perform investigations and oversight of NSA with total independence,” Mikulski said in a statement.

2. Enhanced NSA transparency and Foreign Intelligence Surveillance Courts disclosures: Perhaps sensing uncertainty, Democratic Sens. Mark Udall of Colorado and Ron Wyden of Oregon engaged in a colloquy on the floor the day before the Senate departed for a two-week Thanksgiving break decrying the NSA and vowing action.

“We believe that overly intrusive domestic surveillance programs, misleading statements made by senior intelligence officials, and revelations about how secret courts have handed down secret rulings on a secret law have eroded the trust and confidence of the American people. Simply put, we need to restore this trust, and the best way to do that is to carve out time and hold a vigorous and substantive debate here on the Senate floor, a debate the American people have demanded and deserve,” Udall said during the exchange.

Any real debate on restricting the breadth of the government’s surveillance powers, however, will have to wait until 2014. For now, the Wyden/Udall contingent continues to push its NSA transparency amendment. The short-term goal is to compel the Obama administration and FISA courts to disclose more information about the programs in order to lay the groundwork for a policy debate on the floor that senators and the public can understand.

“The amendment we have offered would require the executive branch to answer some of the major unanswered questions about domestic surveillance authorities and would require that future court opinions which find that domestic surveillance activities have violated the law or the Constitution ought to be made public,” Wyden said.

The classified nature of the surveillance programs have long put skeptics in Congress at a disadvantage. Wyden and Udall said in August that a National Security Agency audit report would be “the tip of a larger iceberg,” noting they were hamstrung by Senate rules.

The Intelligence Committee reported out separate bills in October and November, keeping the issue of reauthorizing and codifying surveillance authorities under the Foreign Intelligence Surveillance Act away from the more routine annual intelligence authorization bill, suggesting that the bill could still move by unanimous consent after some changes behind the scenes.

Judiciary Chairman Patrick J. Leahy, D-Vt., has called what’s sure to be a contentious hearing on the NSA’s surveillance powers for Dec. 11, when NSA Director Keith B. Alexander is scheduled to be among the witnesses.

3. Security clearance for congressional staffers: Some of the most interesting issues that come up in any sweeping bill are the ones that affect Congress itself directly. Republican David Vitter of Louisiana — not one to shy away from provisions that affect staff — has introduced a measure that would allow more staffers to receive security clearance. Currently, most national security meetings with administration officials are only attended by members, as they have security clearance but their aides do not. In the past, some members have complained that they would like to discuss security issues with their staff, but most currently cannot do so.

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