Schiff: If surveillance reform fails in Congress, Obama should act alone

The surveillance reform standoff is sparking a feeling of déjà vu on Capitol Hill.

Especially for California Democrat Rep. Adam Schiff.

Last November, just after Senate Republicans blocked the USA Freedom Act – a bill that would have effectively ended the National Security Agency’s bulk collection of call records – Representative Schiff took a tough stand with the NSA chief during a House Intelligence Committee hearing.

“There's no reason, if you think that this is the correct policy, that you have to wait for the Congress to mandate you to do it,” Schiff told Adm. Mike Rogers at the time. “You don't have to wait for the USA Freedom Act. There is no statutory mandate of any kind for the government to collect bulk metadata."

Now, months later, Congress is again at a standoff over a new version of the USA Freedom Act, which, once again, the House of Representatives has overwhelmingly passed. And, just like last time, the White House says it supports this surveillance reform bill, but many Senate Republicans – including Mitch McConnell of Kentucky, who is now chamber's majority leader – are calling for an extension of the program in the name of national security. 

This time, the pressure's on: Lawmakers have four days before congressional recess, and Section 215, the Patriot Act provision the intelligence agency uses to justify metadata collection, expires June 1.

But Schiff has a new position since last year's debate: He's now the top Democrat on the Intelligence Committee, making him one of the key members of Congress overseeing the intelligence community.

And, if Senator McConnell gets his way again, Schiff says, it’s finally time for the Obama administration to take action: It should, he says, shut down the program unilaterally.

“I think they should end the program, and find an alternate means to get the information,” he told Passcode after a breakfast with reporters hosted by The Christian Science Monitor on Tuesday.

The Obama administration, Schiff said, has insisted it needs special legal authorities from Congress to end the surveillance program, and has voiced concerns about "the telecommunications companies’ willingness” to comply without them. The USA Freedom Act would end the government’s bulk collection and storage of information, and instead leave the call data with the companies to be accessed with a court warrant.

But Schiff says the Obama administration has still not made a persuasive case that congressional legislation is absolutely necessary for the government to end the controversial program exposed by Edward Snowden nearly two years ago. What’s more, the Privacy and Civil Liberties Oversight Board, an independent oversight board within the executive branch that investigated the NSA’s surveillance and judged it to be ineffective, has also said President Obama can end the program at any time of his choosing – and should. So, Schiff says, if reform efforts fail on the Hill, "That's where they should go." 

With just days left on the clock, the intelligence community is facing the very real possibility Section 215 and two other Patriot Act provisions could lapse. If this happens, the bulk collection of call records program would be forced to come to an end, but as Schiff said at the breakfast, “that’s going, going, gone anyway.” Still, he notes the intelligence agency would be left scrambling to find other legal authorities to get data it needs for other core missions. “Of all the outcomes," he says, "that's the least desirable.”

Even so, if this happens, Schiff says administration officials can’t simply blame congressional intransigence.

“If we reach an impasse, and the authority sunsets, the NSA will have some responsibility for that breach,” Schiff said. He has long urged the intelligence community to develop alternative means of accessing the data it needs outside the bulk collection program, or even a bill that mandates this process. If the intelligence community had acted on this, he said, they would be able to prove they are capable of the reforms on a technical and logistical level. 

“Some of my colleagues in the Senate are now... questioning whether we can do this technologically," Schiff said. "Well, had the NSA started this a year ago, they'd be able to say, 'Not only can we do this, but we're ready to do this the day you pass this bill.' 

"I do feel some frustration that the NSA hasn’t moved on this," Schiff continued. "I do think the NSA bears some responsibility here for not making this a priority.”