By Andrew Clevenger

The Bulletin

WASHINGTON — Legislation that would have ended the National Security Agency’s bulk data collection program stalled in the Senate last week, falling two votes short of the 60 needed to advance.

Sen. Ron Wyden, D-Ore., a proponent of reining in what he views as the NSA’s overly broad surveillance powers, was undeterred by the setback. He was disappointed that senators were unable to debate the bill’s merits, because Republicans filibustered a motion to proceed, but pledged to return to the issue.

“To not even have a debate does a disservice to the millions of Americans who know that it is possible to make our country safer and protect their privacy,” he told The Bulletin on Friday.

“My concern is that, at this point, the Senate isn’t doing all it can on either front, and on a bipartisan basis, I’m going to try to change that.”

Wyden said he intends to use a similar strategy to the one he and others employed to derail the Stop Online Piracy Act and the PROTECT IP Act, two laws designed to combat illegal online activity based outside the United States. In 2011 and 2012, Wyden spearheaded congressional opposition, giving outside opponents time to organize a coordinated protest. Days before the Senate was poised to vote to override his hold on the bills, millions of people mobilized online, changing the political momentum and killing the bills’ chance of passing on the grounds that they would impede free use of the Internet.

With certain provisions of Section 215 of the Patriot Act that authorize bulk collection of domestic phone records set to expire in June 2015, the issue can be debated for months ahead of time, rather than in a mad rush days before it is set to expire, he said. In those moments, many lawmakers argue that the world is dangerous, and laws relating to national security must be reauthorized to keep Americans safe.

“I think this is the first time where the clock actually favors the reformers,” Wyden said. “We now have until the middle of 2015 to make our case both inside the Congress and outside the Congress how important it is that there’s reform. Part of this is just laying out facts that people might not know about.”

The public shouldn’t be deterred by the assumption that everything about the NSA’s programs are classified, he said.

Wyden pointed to a passage in the report submitted in December 2013 by the President’s Review Group on Intelligence and Communications Technologies, whose members included former CIA director Michael Morell and Richard Clarke, counterterrorism czar under Presidents Bill Clinton and George W. Bush.

Contrary to claims made by members of the intelligence community, the report found that the bulk collection program hadn’t played a vital role in thwarting terrorism.

“Our review suggests that the information contributed to terrorist investigations by the use of Section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional Section 215 orders,” states the report, which is not classified.

The Senate Select Committee on Intelligence, of which Wyden is a member, will see significant turnover in the next Congress, as four current members are retiring at the end of this year, and a fifth, Colorado Democrat Mark Udall, lost his re-election bid in the midterm election.

During Udall’s tenure on the committee, he has often taken positions similar to Wyden’s, particularly on matters relating to individual privacy and NSA overreach.

One recent example: Together with Sen. Martin Heinrich, D-N.M., Udall joined Wyden in writing to the director of the National Archives and Records Administration’s Records and Management Services to oppose a proposal to delete all CIA emails except those of 22 designated officials “when no longer needed.”

Wyden, Udall and other committee Democrats have also clashed with the CIA over the release of a report produced by the committee staff examining the CIA’s use of “enhanced interrogation techniques,” or torture, when questioning detainees during the Bush administration.

The Intelligence Committee voted to declassify the 6,000-page report’s executive summary, which itself runs hundreds of pages. The CIA and White House have demanded significant redactions to the summary, including the masking of agents’ pseudonyms within the report.

“What the CIA is asking for is unprecedented,” said Wyden. “This was not done in the Church Commission (which examined illegal CIA activities in the 1970s), it was not done in Iran-Contra (the arms-for-hostages scandal in the 1980s), it was not done in Abu Ghraib (the Iraq prison where photos were taken of Americans abusing prisoners).”

Blacking out operatives’ pseudonyms would render the report as inscrutable as trying to read a novel without knowing any of the characters’ names, Wyden said.

“If you don’t have the pseudonyms, you’re really blacking out the report so that people can’t follow the narrative,” he said. “The American people will not know how it happened.”

After his loss on election day, Udall has said he is considering putting the executive summary into the Congressional Record by reading it on the Senate floor or during a committee hearing. Ordinarily, it is illegal to divulge classified informations, but there is a constitutional exception for lawmakers engaged in “speech or debate.”

Wyden declined to say whether he supported Udall declassifying the report by reading it into the record.

“We’re pulling out all the stops to get it out before the end of the year,” he said.

— Reporter: 202-662-7456, aclevenger@bendbulletin.com

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