Remember Edward Snowden? For a while, the National Security Agency's renegade contractor seemed like the most influential man in American intelligence, even though he's been hiding out in Moscow. Snowden's disclosures touched off a wave of enthusiasm in Congress for reforming the NSA's surveillance practices — and anger overseas when he revealed that American spies were listening to foreign leaders' cellphone calls.
But now, as Congress counts only a few working days remaining in its year, the momentum toward intelligence reform has slowed. "It's often not a good idea to legislate when you're angry," Michael Allen, a former chief aide to the House Intelligence Committee, told me last week. "The [congressional] leadership may want this issue to cool down a bit."
And that suits the intelligence agencies just fine. "The best outcome from our standpoint is that nothing changes," a former top official told me.
The central issue Congress has been wrestling with is whether to place new restrictions on the NSA's ability to collect records of Americans' communications. Under current law, the agency can collect almost unlimited "metadata" on telephone calls inside the United States, meaning the phone numbers and times of calls but not the content of conversations. Overseas, the agency can collect the content of calls and email, but it isn't supposed to look at information about U.S. citizens unless it's pursuing "foreign intelligence information."
On a few issues, a rough consensus has emerged. Most members of Congress agree that the NSA needs to disclose more about its activities, mostly through more detailed reports to Congress. And they have produced a blizzard of proposals for reforming the Foreign Intelligence Surveillance Court, which rules on government surveillance proposals, mostly by encouraging the court to add a public advocate to its secret proceedings.
But there's still deep division over the central issue: Is the NSA collecting too much information?
The leaders of the Senate Intelligence Committee, Sens. Dianne Feinstein (D-Calif.) and Saxby Chambliss (R-Ga.), have produced a bill that would essentially leave the NSA's current practices in place but add modest new reporting requirements. But others, including Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, would impose tough new limits.
A bill Leahy has introduced would require the NSA to show that any domestic metadata it seeks is "relevant and material" to an investigation of foreign intelligence or terrorism. Intelligence officials say that would mean the end of the metadata effort — because the program is designed precisely to amass a giant database ahead of time that analysts can check when they acquire, for example, the telephone number of a suspected terrorist.
It's hard to imagine that Congress will undo a program that Obama administration officials describe as effective against international terrorism. But the NSA hasn't been its own best advocate. First, officials claimed the agency's surveillance programs had helped foil 54 terrorist plots; then, as the claim came under scrutiny, they acknowledged that most of those incidents were outside the United States and the role of metadata wasn't always clear.
The key could be the position President Obama takes after his own in-house intelligence review panel delivers its report, expected next month. But civil libertarians, who have been disappointed by Obama before, are bracing for another letdown.
There's not much political leeway for the president to clamp new restrictions on his own anti-terrorist spy agencies. Public opinion polls last summer found that most Americans supported the NSA's collection of telephone metadata, even though many believed erroneously that the collection also included the content of telephone calls. And as Amy Zegart of Stanford's Hoover Institution has noted, almost two-thirds of Americans support the assassination of foreign terrorists. We are not a squeamish nation.
But if most Americans — including me — accept that it's potentially useful for the NSA to collect all that metadata, we still need reassurance that the intelligence agencies are following the rules. And that's where the record of the last decade of intelligence collection remains worrisome.
Intelligence officials and their congressional overseers insist the NSA is behaving — now. But that's not what the FISA court found over the last five years.
"NSA analysts … have generally not adhered to the dissemination restrictions proposed by the government," Judge Reggie Walton wrote in a 2009 ruling released last week.
"NSA's record of compliance with these rules has been poor," Judge John Bates wrote in another ruling, whose date remains unaccountably secret.
Feinstein and Chambliss, in their bill, would require the director of national intelligence to report any violations of law to Congress' intelligence committees — just once a year, with no requirement for public disclosure.
But that's not enough to restore public confidence in the intelligence agencies or the FISA court. Proposals from Sens. Leahy, Ron Wyden (D-Ore.) and others would require greater public disclosure of secret rulings the court has made and of NSA violations of the Constitution or the law. They'd allow the court to keep information secret when needed for national security, but they'd end the intelligence agencies' privilege of violating court orders with only minimal oversight from outside.
Snowden probably hasn't released the last of his purloined documents. The U.S. intelligence community still faces unpleasant surprises from his next disclosures, a battle in Congress over competing proposals for reform, and a long road to restoring public confidence. More disclosure isn't the only answer to those challenges. But when it's happening anyway, thanks to a renegade contractor, it would be a useful start.