A Kansas lawmaker wants the nation’s spies to get back their access to mass surveillance data that allowed the federal government to track communications of potential terrorists.
And that’s not all: U.S. Rep. Mike Pompeo, a Republican from Wichita, says that eventually he wants the National Security Agency to be able to restart its bulk collection of metadata and combine those records with even more information: financial and “lifestyle” details that would be accessible in a huge, searchable database.
It’s a controversial stance that divides the all-GOP Kansas congressional delegation and exposes a larger rift in the Republican Party between national security hawks and libertarian-leaning conservatives determined to rein in government surveillance powers.
“It takes two issues important to Republicans (national security and civil liberties) and pits them against each other,” said Chapman Rackaway, a political science professor at Fort Hays State University in Kansas.
On one side, Pompeo – along with Kansas Sen. Pat Roberts – champions legislation that would restore the NSA’s access to a large cache of metadata collected under the now-expired Patriot Act.
On the other, Kansas Reps. Tim Huelskamp, Kevin Yoder and Lynn Jenkins, along with Sen. Jerry Moran, have expressed concerns that the bulk collection of metadata threatens Americans’ civil liberties.
Pompeo doesn’t favor that view. In a recent essay for the National Review, he said Republicans who didn’t support the collection of metadata were “as weak as Democrats.”
“I believe that program has proven to be a very valuable asset for the intelligence community and for law enforcement,” Pompeo said in an interview. As a member of the House Permanent Select Committee on Intelligence, Pompeo said, he was able to examine how the program worked and he’s confident it was both effective and constitutional.
“We ought not to take that tool away from our intelligence community while the threats are as great as they are today,” he said, citing the Dec. 2 mass shooting by Syed Rizwan Farook and Tashfeen Malik in San Bernardino, California, which left 14 people dead.
Our first duty is to protect the national security of the United States. Limiting terrorist surveillance does not make this nation safer.
Sen. Pat Roberts, R-Kan.
At the heart of the party’s split is what’s known as metadata, or data about data.
In other words, it’s information about the communications you send and receive: whom you talk to, the times and lengths of your conversations, and general location information – but not the content of those conversations. Computer algorithms can analyze the metadata to expose patterns and to profile individuals and their associates.
After former NSA contractor Edward Snowden revealed the metadata program’s existence in 2013, public momentum was in favor of rolling it back. However, recent terrorist attacks might turn public sentiment back toward its supporters.
“At the very least, these are just numbers on a page with no names, but they could help solve some of these plots that are beginning to develop in the U.S. and around the world,” Pompeo said. “So we should hang on to the data that we have and use it in a way that lets law enforcement achieve the security that I know every American wants.”
To that end, Pompeo has introduced the Liberty Through Strength Act, which would restore the NSA’s access to “business records, telephone call records and other tangible things” collected under the defunct Patriot Act.
The bill also would strengthen the FBI’s authority to access communication transaction records, including people’s names, addresses and billing records. The bureau would have to certify to service providers that such information “is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”
And the bill would make permanent a provision of the Foreign Intelligence Surveillance Amendments Act, set to expire next year, that allows the NSA to capture the content of communications by foreign citizens living abroad.
The provision prohibits the NSA from intentionally targeting anyone in the United States. But civil liberties groups say it skirts Fourth Amendment protections against unlawful search and seizure by allowing the content of Americans’ emails, instant messages, browser histories and social media posts to be swept up indirectly in the course of an investigation.
Pompeo defends the provision, pointing out that it requires the government to halt such inadvertent surveillance of people in the U.S. unless they’re actively engaged in plots.
“There’s an exception and there’s active oversight,” he said. “We shouldn’t let the plot go on because we’re trying to protect some noble cause.”
Alhough Pompeo’s bill wouldn’t go as far as reinstating and enhancing metadata collection, that’s what he would prefer.
In a Wall Street Journal editorial published this month, Pompeo wrote that Congress should pass a law not only re-establishing the collection of metadata but also combining it “with publicly available financial and lifestyle information into a comprehensive, searchable database.”
By lifestyle data, the congressman means information available to the public, such as data gathered through a census; birth, marriage and death records; or law proceedings.
Pompeo’s bill has no co-sponsors so far, but an identical Senate bill introduced last month by Sen. Tom Cotton, R-Ark., has 12. They include Senate Majority Leader Mitch McConnell, R-Ky.; Sen. Richard Burr, R-N.C., the chairman of the Senate Select Committee on Intelligence; and Sen. Marco Rubio of Florida, a Republican presidential candidate.
Roberts, a onetime Intelligence Committee chairman, is another.
“Our first duty is to protect the national security of the United States,” Roberts said in a statement. “Limiting terrorist surveillance does not make this nation safer.”
Moran, Jenkins and Yoder said they were reviewing Pompeo’s bill and hadn’t decided whether they would support it.
Huelskamp was more skeptical.
“Unless it protects the Fourth Amendment rights of all Americans,” he said in a statement, “I would not support the bill.”
Unless it protects the Fourth Amendment rights of all Americans, I would not support the bill.
Rep. Tim Huelskamp, R-Kan.
The NSA’s collection of bulk metadata ended last year when Congress let the Patriot Act expire and passed the USA Freedom Act in its place. The new law ended the sweeping collection of American’s phone records after 180 days, a time frame that expired in November. Although the government no longer has direct access to such records, it can still request them from telecommunications companies with the approval of the Foreign Intelligence Surveillance Court.
Even the USA Freedom Act split Kansas lawmakers.
Roberts, Pompeo and Jenkins voted for that bill, while Huelskamp, Yoder and Moran voted against it.
Pompeo said he voted for the bill despite strong reservations because he felt it was better to pass an imperfect bill than to let the Patriot Act expire without any replacement.
“We did not believe that we could not pass anything at that point in time that was better than the USA Freedom Act, and we couldn’t let it expire,” he said. “That would have been worse.”
Americans generally are wary of government surveillance. In a recent Pew Research Center survey, 57 percent said it was unacceptable for the government to monitor the communications of U.S. citizens.
57 Percent in a Pew Research Center survey who said it was unacceptable for the government to monitor the communications of U.S. citizens.
However, 82 percent said it was acceptable for the government to monitor the communications of terrorism suspects.
Pompeo’s bill to restore NSA access to metadata collected in the past and its counterpart filed by Cotton in the Senate have prompted opposition from a rare coalition of groups on the right and left of the political spectrum.
Neema Singh Guliani, legislative council for the American Civil Liberties Union, says the metadata was collected illegally and should be deleted. Adam Brandon, CEO of FreedomWorks, a libertarian-conservative advocacy group, has slammed the Senate version of Pompeo’s bill as “Big Brother on steroids.”
“This is one of those things where the right and the left united in their concerns about the unlawful surveillance that has occurred,” said Singh Guliani. “It’s been a really bipartisan issue, where there are members of Congress who agree on very little but they agree on this issue.”
Given the support for the USA Freedom Act last year and general concerns about surveillance from conservatives and liberals, she said, Pompeo’s bill likely would face significant opposition on and off Capitol Hill.
Pompeo said he understood why conservatives, including some of his constituents, were wary of the metadata program.
“Conservatives have deep distrust of government power,” he said, “so I not only understand their privacy concerns, I share them.”
He’s heard plenty of his constituents in Kansas complain that they didn’t want the government reading their emails or listening to their phone calls. But he says such concerns show that few know how the metadata program works.
“They understood this was a monitoring program, and it’s not,” Pompeo said. “Not a single email was read or call was listened to without the due process the constitution requires.”
Recent terrorist attacks in Paris and San Bernardino have Americans on edge, and the pendulum might swing back to Pompeo’s view.
He expects to see the issue to come up in the presidential race – in the primaries and the general election in both parties.
“And I think you’ll see it play out in Senate and House races all across the country,” he said.