In the wake of this past weekend’s contentious Senate session over reauthorization of specific provisions of the PATRIOT Act, Section 215, which authorizes the bulk metadata collection made public by Edward Snowden’s 2013 leaks, expired as a result of Sen. Rand Paul’s procedural maneuverings in the Senate. In addition, the USA FREEDOM Act (USAF) was advanced to a floor debate by a substantial majority vote of 77-17. Both of these events are noteworthy victories against the burgeoning surveillance state, but there are still a number of barriers to overcome in the coming days.
The most pressing of these are pending amendments that would weaken the current version of USAF.
To wit, Senate Majority Leader Mitch McConnell has introduced four new amendments to USAF, while permitting no further amendments to the bill, all of which would lessen the impact of the original bill’s reforms; reforms which were supported by a bipartisan consensus of the House of Representatives (in a landslide 338-88 vote in favor), the Obama Administration, the intelligence community, and a broad coalition of nonprofits, trade organizations, and industry firms. The McConnell and Burr-Feinstein amendments should all be rejected and the Senate should proceed to pass USAF in its current form if the American people are to have any hope of substantive NSA surveillance reform.
Julian Sanchez, a policy analyst at the Cato Institute, has very insightfully summarized the strange procedural gymnastics that have occurred over the past twenty-four hours in a recent piece, pointing out that
the Senate voted to move forward on the bill by a vote of 77–17, opposed only by the strange bedfellows coalition of Rand Paul and 16 of the Senate’s most hardcore NSA cheerleaders. McConnell has proposed an array of amendments weakening or diluting it, though perhaps less because he think they’ll pass than because doing so “fills the tree” for amendments and prevents folks like Ron Wyden or Rand Paul from offering amendments that would strengthen the bill.
Put simply, the last remaining viable option for true surveillance reform now lies with the USAF which, as a result of these political machinations, is now imperiled with being watered down into a bill that is less substantively reform-oriented and more a mere symbolic gesture of the Senate’s willingness to consider practical reform of bulk data collection processes.
Had USAF moved forward unamended this past Sunday, this would have had effectively prevented the sunset of 215 and could have potentially buoyed the case for surveillance hawks to forego amendments, increasing the chances of a clean passage.
While Sen. Paul’s commitment to ensuring the expiration of Section 215 is commendable, it may have backfired in the worst possible way, a result that the Senator seems to have recognized, having recently come out in favor of the same act he previously opposed. As Alex Rogers and Dustin Volz recently reported in a National Journal article
Paul told reporters as he left the Capitol that his blockade of the [USA FREEDOM Act] helped Freedom Act advocates … “I like to look at the bright side of things,” Paul added. “Before I got involved there were 57 votes. Even though I object to the final vote, there’s now 77 votes for ending bulk collection. So you could say that I – in an unusual way – persuaded 20 people to switch their vote and to vote to end bulk collection. It’s kind of a different way of persuading people, but it seemed to work.”
However, if the junior senator from Kentucky had truly intended to advance the provisions of USAF this past Sunday, it is uncertain why he would have blocked further consideration of the bill. It certainly seems to be the case that Sen. Paul stands opposed to the surveillance status quo, but by first opposing USAF and now claiming credit for it moving to debate, one wonders if the senator was aware of the possible outcomes of such a tactic.
Unfortunately, Sen. Paul’s opposition to USAF has placed the bill in a precarious position where it is now vulnerable to these less-than-ideal amendments, potentially weakening the bill’s reforms such that USAF will be all but a symbolic Congressional gesture.
Credit should be granted where it is most appropriately due for taking USAF this far: to Sen. Leahy, the architect of the Senate version of the bill, and the other senate members who have shown committed and consistent support for the bill, as well as the stalwart coalition supporters who united to advance practical reforms to the modern surveillance system. If USAF is forced to endure amendments, whether McConnell’s or the Burr-Feinstein variants, it will return to the House for reconsideration. If the bill that returns to the Senate is weaker than the current incarnation, the difference could very well be a deficit of liberty.
Either way, the result will be Sen. Paul’s legacy on surveillance reform.
Civil libertarians from across the political spectrum might disagree about USAF’s effectiveness at reigning in the ongoing surveillance of innocent and law-abiding Americans’ communications, but one thing is certain: this bill is the first opportunity for real reform since the 2013 revelations made public by Mr. Snowden. In a political climate that has, for as long as recent memory can recall, been plagued by bipartisan intransigence and political tribalism, there is finally a bill that could provide the first important step forward in reforming the post-9/11 surveillance state. That step needs to be taken by this Senate in the coming days; whichever step it decides to take will determine the fate of civil liberties in America.
The key takeaway from this experience, and moving forward into the vote for surveillance reform, is that the Senate needs to work together to ensure the strongest possible bill passes – anything less would be an affront to the American people.