Mitch McConnell might be his own worst enemy.
The legislative showdown over how (and if) to reform the government’s surveillance authorities has reached its final round. And the Republican majority leader—who backs a clean reauthorization of the Patriot Act, including the bulk collection program recently deemed illegal by the Court of Appeals for the Second Circuit—seems increasingly unlikely to come out on top.
Late Friday night, Republicans led by McConnell blocked the House’s tepid NSA reform bill, which would reauthorize the Patriot Act, minus bulk collection (I call it the USA (Slightly More) Freedom Act). But they also blocked a series of measures backed by McConnell that would have temporarily extended the Patriot Act, as written.
It seems that, by whipping Republicans in the Senate to kill the House’s reform bill, but underestimating opposition to a clean extension, McConnell has actually created a situation in which his least preferred outcome—the expiration of those key surveillance provisions—has become a distinct possibility, if not a likelihood.
With the federal government already shutting down its metadata program, Congress away on recess, and the June 1 deadline for reauthorization looming ever nearer, McConnell appears to have made a grave (and uncharacteristic) miscalculation.
His mistake was to assume that the same fear-mongering tactics that have guaranteed the untrammeled power of the surveillance state for the past fourteen years would work again, that in the last instance, his colleagues would agree to extend the Patriot Act to avoid the alternative: depriving the intelligence community, even for a few weeks, of its precious surveillance tools.
In a speech Friday, McConnell invoked the imminent threat of ISIL and warned of “lone wolf” attackers inspired by Islamic State propaganda. “At a moment of elevated threat,” McConnell said, “it would be a mistake to take from our intelligence community any—any—of the valuable tools needed to build a complete picture of terrorist networks . . . such as the bulk data collection program of Section 215.”
The problem is, McConnell is playing out of on an expired playbook. The Snowden revelations, the rise of a hard libertarian opposition within the GOP, the failure of the ever-augured “next big attack” to materialize have shifted the ground beneath the feet of the intelligence community’s yes-men in Congress. When these same authorities were renewed in February 2010, the Senate debate lasted all of twenty seconds. But now the game has changed.
Most of the new pressure is coming from outside Congress. The American people—who’ve seen their civil liberties contract for more than a decade now—are no longer so easily cowed into submission by veiled threats or calls for political prudence. The majority of Americans have expressed concern about the NSA and other agencies’ invasive spying programs for years now. Their representatives in Congress are just beginning to catch up.
Thanks in large part to McConnell’s machinations, no group is more out of step with the American public on this issue than the Senate’s right wing. The overwhelming majority of Republican Senators voted against the moderate USA Freedom Act on Friday night, despite 58 percent of Republican voters backing reform. A GOP aide told National Journal that McConnell helped whip last-minute votes against the bill by telling his colleagues “that a vote for USA Freedom was a vote to cancel recess.” In other words, he told them “vote the party line or say goodbye to your vacation.” And it worked.
But when it came time to vote on McConnell’s clean reauthorization measure, the votes weren’t there either.
On Friday afternoon, Senator Lindsay Graham—who backs McConnell’s plan—took to the floor to invoke the tried-and-true blackmail of the post-9/11 age: “Anybody who neuters this program is going to be partially responsible for the next attack.” But those words, which have been uttered time and time again to justify the rollback of our basic liberties, somehow lacked their former magic. In the end, McConnell’s measure fell 15 votes short of the 60 needed for cloture.
Now, the Senate will reconvene on Sunday, May 31, for what McConnell calls “one more opportunity to act responsibly and not allow this program to expire.”
The prospects don’t look good. Even if McConnell can muscle a compromise through the Senate in time (a few hours), it’s unlikely the House will pass anything less than USA Freedom. And many civil libertarians—including myself—would rather see the authorities expire than allow a compromised reform bill to pass.
And so Mitch McConnell will have to live with the consequences of his misjudgment: either back the bill he has spent more than a month seeking to undermine; or give up the surveillance authorities he says we desperately need to fight the War on Terror.
It’s a tough spot—and entirely of his own making.