The Cable

Key NSA Defender: Congress 'a Lot Closer' on Surveillance Reform

In a dramatic change of tone, Rep. Mike Rogers, the chairman of the House Intelligence Committee, praised a bill in the House Judiciary Committee that would sharply curb the National Security Agency's surveillance powers. His remarks suggest that the powerful lawmaker may be more willing to vote for tougher reforms than previously anticipated.

Rogers and other national security hawks have spent weeks arguing that the USA Freedom Act, the most aggressive NSA reform bill under consideration in Congress, would remove tools that the government needs to track phone calls by foreign terrorists. Rogers, a staunch NSA supporter, is the sponsor of another bill that would codify many of the surveillance practices opposed by privacy advocates, such as the dragnet collection of records.

Hill watchers have long predicted that the bills were on a collision course that would wind up pitting two of the party's most powerful lawmakers, Rogers and House Judiciary Committee Chairman Bob Goodlatte of Virginia, against each other.

Instead, Rogers said that he had warmed to the Judiciary bill because of a new amendment that would give the NSA broader authority, including the ability to obtain phone data in emergency situations under certain conditions. Surveillance critics worry the amendment has watered down the original bill's privacy protections and transparency requirements.

In an interview with Foreign Policy, Rogers said those changes constituted a "huge improvement" and that he may end up supporting the bill despite the existence of his rival NSA reform bill scheduled for a vote in the House Intelligence Committee on Thursday.

"I have always been willing to work with people who had serious advice and counsel in how to get this right," Rogers said. "They've come a lot closer [and] now we're just trying to work out the wording."

Rogers' words come as a surprise to NSA critics in Congress given the substantive differences between the USA Freedom Act and his own bill, even in light of Monday's amendment.

"It's very encouraging, obviously," said Rep. Jerrold Nadler, a Democratic member of the Judiciary Committee and a backer of the USA Freedom Act. "We anticipated that we would have to have a battle between the two committees and if Rogers is signaling we may not have to, that'd be great."

The USA Freedom Act has become more palatable to national security hawks following a compromise by the committee's civil libertarians. On Monday, Goodlatte gave his support to the bill after it was amended to allow the government to collect phone data on U.S. citizens based on a "reasonable articulable suspicion" of wrongdoing -- a standard the NSA favors. If approved, the government can collect metadata on individuals who are two degrees or "hops" of separation from the suspect under the law.  The changes also allow the government to bypass prior judicial approval for phone data in cases of emergencies (i.e. a ticking time bomb scenario). 

Still, large substantive gaps remain between the bills in the two committees. Although both proposals would keep phone records in the hands of phone companies as opposed to the NSA, the similarities stop there. The Intelligence bill, for instance, does not require the NSA to obtain prior court approval to query each individual number it wants to see. The Judiciary bill does, except in cases where a terrorist attack is iminent. In such a scenario, the bill requires a determination by the attorney general that the request is reasonable and forces the AG to apply for retroactive court approval within seven days. The Judiciary bill also prohibits the practice of bulk data collection through the use of national security letters (NSLs) while the Intelligence bill does not.

While it remains unclear how the two committees will resolve the outstanding differences, the apparent breakthrough is likely to come as a relief to House leadership, which doesn't want a bloody surveillance reform fight to jeopardize other pieces of critical legislation such as the annual defense authorization bill (NDAA).

"I'm glad that Rogers said that," said a Republican House leadership aide. "It's encouraging that both committees are basically looking for a way forward." House leaders have scheduled the NDAA for a floor vote on May 19.

Rogers insists he's always been open to responsible compromise, including the consideration of competing bills. "If we can work this out and have Judiciary be the primary bill, I'm absolutely fine with that," he said. "This is not about pride of authorship for me. It's about how you get this right." Rogers still plans to hold a vote on his NSA reform bill on Thursday to keep his options open.

Still, the fate of NSA reform is far from certain. Any compromise to the Judiciary bill risks an insurrection from civil libertarians in Congress. Michigan Republican Justin Amash led such a revolt last year when he offered an NSA amendment to a defense appropriations bill that would have stripped funding for the NSA's collection program. The Amash provision terrified House leadership and nearly passed in a dramatic House floor vote. At the moment, Amash's spokesman said his boss is still reviewing the revised version of the USA Freedom Act to see if he'll lead a similar kind of insurrection.

"I will carefully review Judiciary Committee-revised version of #FreedomAct," Amash tweeted. "Just a weakened bill or worse than status quo? I'll find out."

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The Cable

Here’s Why a French Reporter Asked Obama About the Death Penalty

President Obama and German Chancellor Angela Merkel took to podiums in the White House Rose Garden on Friday to threaten new, broader economic sanctions against Russia unless it backs off of its aggressive military actions in Ukraine. But one of the only questions they took from the media was on an entirely different subject: A French* reporter asked the president about the morality of the United States continuing to allow the death penalty, in light of a botched execution in Oklahoma that left a convicted killer gasping and moaning before he died.

At first blush, the reporter's question may have seemed like a wasted opportunity to press Obama and Merkel on their policy with Ukraine and Russia. But the question wasn't out of left field: European leaders have a long history of protesting executions in the United States because the drugs used in many lethal injections were once produced in Europe. In December 2011, The EU blocked the United States from importing the chemicals used in virtually every lethal injection at the time: sodium thiopental, pancuronium bromide, and potassium chloride. EU officials have repeatedly called for the "universal abolition" of the death penalty, which they deride as inhumane and barbaric.

Obama fielded the question on Friday, providing his first remarks on the controversy since Clayton Lockett's execution went awry. He had been sentenced to death for murder and a variety of other charges after he and two accomplices attacked and sexually assaulted two teenage women, one of whom Lockett shot twice and then buried alive.

The incident was "deeply troubling," Obama said, adding that he had asked the Attorney General Eric Holder to review how death-row inmates are killed. He did not elaborate, beyond saying he wants to know which steps were taken, both in Lockett's execution and "more broadly."

"I think we do have to, as a society, ask ourselves some difficult and profound questions around these issues," Obama said, while nevertheless expressing support for keeping the death penalty alive in certain serious and grotesque violent crimes, like mass shootings and the killing of children.

The death-penalty chemical issue has been a serious one in Europe for years. It erupted after the U.S drug company Hospira announced in 2011 that it was halting production of the sodium thiopental drug Pentothal in the face of broad global opposition. European companies began cutting the United States off from execution drugs afterward, heightening the crisis for U.S. prison officials.

The issue received national attention in the United States in January, after another convicted killer in Ohio, Dennis McGuire, 53, was put to death using a new two-drug cocktail of drugs that left him gasping and snorting for more than 25 minutes. Ohio used a combination of midazolam, a sedative, and hydromorphone, a morphine derivative, to execute McGuire, who raped and stabbed a pregnant 22-year-old woman to death in 1989. Prison officials said he did not feel any pain, but that they would up the dosage in future executions.

On Tuesday, the issue came up again during the failed execution of Lockett, age 38. Prison officials used a different new - and secret - combination of drugs in his case. Prison officials have attributed the problems in Lockett's case to a collapsed vein in his groin, which effectively prevented the lethal drugs from entering his bloodstream smoothly. Lockett, officials said, also was zapped with a Taser electroshock device shortly before his execution. He ultimately died of a heart attack.

Correction, May 2, 2014: An earlier version of this article misstated the nationality of the reporter who questioned the United States' continued use of the death penalty. He is French. (Return to reading.)