Senate majority whip John Cornyn told reporters Tuesday he believes a divided Congress will find a way to extend key surveillance provisions of the Patriot Act—set to expire June 1—before leaving for a weeklong recess beginning Monday.
“What usually happens when you get down to a deadline like that,” Cornyn said, “is people then reevaluate the circumstances and do the responsible thing.”
For Cornyn, majority leader Mitch McConnell, and other Senate hawks, the ideal “responsible thing” would be a straight reauthorization of those three provisions—allowing the NSA to continue its bulk collection of Americans’ phone records unabated (at least until the judiciary resolves the present legal ambiguity).
Another “responsible” option—this one backed by a bipartisan majority in the House, Speaker Boehner, President Obama, and Democrats in Senate—would be for the upper chamber to pass the House’s version of the USA Freedom Act, a relatively tame reform bill that reauthorizes the Patriot Act while outlawing bulk collection.
Neither of these options is particularly good. McConnell’s reauthorization—even a temporary one—would allow the NSA to continue a program that the Court of Appeals for the Second Circuit has deemed illegal, and which even top intelligence officials have ceased defending. And the USA Freedom Act, in its current form, would not significantly curtail the worst abuses of the NSA as exposed by former contractor Edward Snowden.
Which leaves only one course for those who support substantive surveillance reform that properly safeguards civil liberties: do the “irresponsible” thing. Let them expire.
If civil libertarians in the Senate block both the tepid USA Freedom Act and McConnell’s stopgap reauthorization, they would return from vacation on utterly shifted strategic ground.
For the first time since 2001, the Justice Department, intelligence community, and surveillance advocates in Congress would have to bear the burden of proof. They would have to demonstrate why the government needs these provisions and the programs they authorize. They would have to prove—as they have yet to do—that data collection under Section 215 stops terror attacks, that the “lone wolf” and “roving wiretap” provisions are necessary beyond the authorities granted by typical warrants. And they would have to argue why these programs are worth the sacrifices in civil liberties they entail.
Very likely, they would succeed in doing so. The government is loath to give up powers it’s grown used to exercising. They would fight hard to restore them—raising the reliable specter of resurgent radical Islam and accusing opponents of facilitating looming terror attacks. But unlike every other time the Patriot Act has been reauthorized since 2001, they would actually have to fight.
And in that fight would be an opportunity for Congress to undertake the first honest and thorough accounting of the surveillance authorities claimed by the government since 9/11.
To be clear, I believe there are arguments to be made in favor of each authority set to expire on June 1—even the business records provision (Section 215). But for those who want surveillance reform with teeth, expiration is an incomparably better place to begin negotiation.
The pressure is already on.
The Department of Justice warned Wednesday that the NSA will have to “begin taking steps to wind down the bulk telephone metadata program” after Friday—to avoid violating the law, if its authority should lapse.
McConnell today set a pair of votes for Saturday in the Senate. One, with his backing, is a two-month extension of the Patriot Act as written. The other, backed by a majority of Democrats, is the USA Freedom Act. It looks unlikely McConnell will allow amendments to either bill.
For those “irresponsible” legislators willing to risk some tarring from their hawkish colleagues in order to secure substantive reform for their constituents, the thing to do is reject these measures—and hold out for better.
Kentucky Senator Rand Paul spent 10.5 hours yesterday standing on the Senate floor, sporting gray sneakers with neon green laces, proclaiming his willingness to do just that.
It may not have been a real filibuster (it wound down the clock but didn’t actually prevent any scheduled votes), and it may have been largely motivated by a desire to drum up funding for his presidential campaign (the “Rand Filibuster” swag that went for sale on his website last night is some indication), but Rand’s grandstand, and the support he got from both Democrats and Republicans (including begrudging praise from his 2016 opponent Ted Cruz), is evidence enough that opposing the Patriot Act is no longer political suicide.
Rand began his marathon disquisition with these dramatic lines: “There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer. That time is now.”
He may be right. But if proponents of liberty and privacy can overcome their own “fear and complacency,” and embrace the so-called irresponsible option, they have a historic opportunity to curtail those fearsome powers.
That time is now, too.