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WASHINGTON — A White House review of U.S. surveillance programs has given Congress some temporary political cover after lawmakers failed this year to overhaul spy operations, and could break the legislative snarl that followed months of global outrage over privacy intrusions.
Since last summer, a deeply divided Congress has tussled over competing plans to protect Americans’ privacy rights by limiting National Security Agency powers to track terrorists.
But a presidential advisory panel’s 46 tough recommendations, released this past week by the White House, offer a way ahead for lawmakers who face the voters next fall. They can point to the suggestions to save face politically with security-minded constituents if surveillance is scaled back aggressively.
“The American public is expressing an opinion that it feels safer, and we don’t need as many of these intrusive-sounding programs as we needed a decade ago,” said Tom Newcomb, a former CIA officer and lawyer who served as a counterterror adviser to President George W. Bush.
“The political risk, as I see it, is all of this changes if we get a terrorist attack or a significant attempt that scares us again,” said Newcomb, who’s now a criminal justice and political science professor at Heidelberg University in Tiffin, Ohio. “And then Congress, which has generally taken it upon itself to assign blame, will blame those who reformed.”
At the least, the review finally could prod Congress into defining the extent to which the U.S. should spy on its citizens and foreign allies.
The recommendations “reaffirm what many of my colleagues and I have been saying since June — the NSA has gone too far,” said Rep. James F. Sensenbrenner, R-Wis.
The review group adopted the central part of legislation that he is pushing — barring the NSA from its massive daily sweep of U.S. telephone records.
Sen. Ron Wyden, D-Ore., said he found a lot in the report “for a reformer to like.”
There’s no guarantee that President Barack Obama will embrace all the recommendations from the group, which includes former intelligence officials. Also, the review drew sharp criticism from lawmakers who fear that limiting surveillance could lead to future attacks on the country.
In a statement Friday, the Democratic and Republican leaders of the House and Senate intelligence committees said some of the group’s conclusions were “misleading.” They urged the White House to reject a recommendation to scrap the bulk collection of telephone records known as “metadata.”
“The NSA’s metadata program is a valuable analytical tool that assists intelligence personnel in their efforts to efficiently ‘connect the dots’ on emerging or current terrorist threats directed against Americans in the United States,” wrote Sens. Dianne Feinstein, D-Calif., and Saxby Chambliss, R-Ga., and Reps. Mike Rogers, R-Mich., and Dutch Ruppersburger, D-Md. “We continue to believe that it is vital this lawful collection program continue.”
The surveillance programs were revealed in June by former NSA contractor Edward Snowden, whose release of smuggled agency documents have demonstrated the government’s secret reach into the private lives of people worldwide.
In the months since, polls have reflected Americans’ strong disapproval over the programs, and foreign leaders have castigated the Obama administration for what they described as prying into their own personal and diplomatic communications.
U.S. intelligence officials declassified more documents on Saturday, providing a look at the history of NSA surveillance since the Sept. 11 attacks on New York and Washington. Director of National Intelligence James Clapper explained how the NSA was first authorized by the Bush White House to start collecting bulk phone and Internet records in the hunt for al-Qaida terrorists, as part of the previously disclosed Terrorist Surveillance Program. That was eventually replaced by the Foreign Intelligence Surveillance Act — a law that requires a secret court to OK the spying. The disclosures are part of the White House’s campaign to justify the NSA surveillance, declassifying as many documents as possible explaining the spying.
Each day, the NSA programs collect hundreds of millions of Americans’ phone records day from U.S. telephone companies, and perhaps billions of Internet messages from around the world. The NSA says it does not listen in on the phone calls or read the Internet messages, without specific court orders on a case-by-case basis.
But intelligence officials do collect specific information about the calls and messages, including how long they lasted, what time they were initiated, and the phone numbers of each party, to try to track communications of suspected terrorists.
Obama said at a news conference Friday that he would decide in January which recommendations to accept. He defended the NSA program as “not engaging in domestic surveillance or snooping around.”
Still, he added, “just because we can do something doesn’t necessarily mean we should.” That was seen as a hint at changes he could make, which could take some heat off Congress.
Until now, the administration has favored a proposal by Feinstein and Rogers that would keep the phone records surveillance in place but impose stronger court and congressional oversight of the NSA. The committee leaders also would create penalties for people who access classified information without authorization, and enhance whistle-blower protections for intelligence agency employees.
The congressional committees have worked closely with U.S. spy agencies since the Sept. 11 attacks, and generally are more sympathetic to their needs.
Legislation by Sensenbrenner, the Republican who helped strengthened spy powers in 2001, and Democratic leaders of the House and Senate Judiciary committees is far more aggressive in scaling back surveillance.
It would prohibit the NSA from the bulk collection metadata and create a privacy advocate to attend hearings and, in some cases, appeal rulings of a secret intelligence court that oversees government surveillance requests. That court currently only hears from the government, without an advocate for the target of the surveillance.
The bill supporters believe they have enough votes for the measure to pass in the GOP-run House, although it’s still not clear whether the Democratic-controlled Senate would approve it.
Congressional leaders, who have been briefed for years on the classified terrorist-tracking programs, generally support more modest changes to the surveillance programs. They have delayed votes on the issue, in part, to give lawmakers on the Intelligence and Judiciary committees time to work out a compromise.
House Democratic leader Nancy Pelosi of California indicated this past week that whatever Obama decides will shape congressional action next year. She said lawmakers “will work with the administration to enact measures that preserve Americans’ privacy and civil liberties while ensuring our national security.”
But it’s unlikely that Congress will approve broad changes until the spring at the earliest. Last July, a plan to shut down NSA phone collection program fell only a few votes shy of passing the House.
Elizabeth Goitein, director of the Brennan Center Liberty and National Security Project, said the new recommendations will give the Judiciary committees’ plan “some additional oomph” that could lead to a compromise in the Intelligence committees.
“It’s going to be a fight,” Goitein said. “But we’re frankly more likely to see something in the nature of a compromise, because I think it’s going to be very hard politically for the administration to go against the recommendations of his own review committee.”