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The Battle Over the Patriot Act

Although McConnell is insisting that Congress should reauthorize the Patriot Act without reform, it’s clear the NSA’s bulk collection program must end.

May 30, 2015

Crossposted on

This past Memorial Day, we honored those who have made this country the land of the free and the home of the brave.

But as the Senate headed into its Memorial Day recess, Majority Leader Mitch McConnell seemed determined to usher in a very different America: the land of the watched and the home of the fearful.

In an almost panicky voice, he urged his colleagues to reauthorize three provisions of the Patriot Act scheduled to sunset on June 1—including Section 215, which forms the basis for the National Security Agency’s bulk collection of Americans’ telephone records. The Islamic State, McConnell warned, was at our doorstep. The country would be “in danger” if the Patriot Act authorities were to lapse for even one day.

McConnell, a Republican from Kentucky, plainly does not believe his own scare tactics. If reauthorization of the Patriot Act were the key barrier between Americans and ISIS, he presumably would not have waited until the last possible minute to address it. Nor would he have voted against the USA Freedom Act, a bill that would reauthorize the expiring provisions while narrowing the collection of Americans’ phone data.

There is, in fact, zero risk of our intelligence efforts “going dark,” as Democratic Sen. Barbara Mikulski (who counts the NSA as one of her Maryland constituents) suggested.

The Patriot Act did not invent intelligence gathering, and our government had ample means to collect information in foreign intelligence investigations before its enactment. The 9/11 Commission concluded that the government failed to make adequate use of the information it had before the attacks—not that it lacked information or the tools to gather it. Those tools will remain available even if sections of the Patriot Act sunset.

Fear-mongering by those who wish to expand government powers is nothing new.

The good news is that this time around McConnell’s colleagues are not buying it. For the first time since 9/11, the Senate refused to rubber stamp an extension of the government’s surveillance powers, even short term. Only 46 Senators voted for a two-month extension of the Patriot Act.

While McConnell was able to strong-arm his caucus into blocking the USA Freedom Act, that bill still received 57 votes, just three votes shy of the 60 needed to overcome a filibuster.

McConnell will reconvene the Senate on the afternoon of May 31 for another round of votes, but with the House in recess until June 1, the USA Freedom Act—which the House already passed—is the only realistic alternative to sunset.

Why did McConnell’s tactics fail this time?

Lawmakers and the public alike have begun to realize that we have sacrificed too much liberty for marginal or nonexistent security gains. The bulk collection program is the poster child for this poor bargain. Collecting Americans’ phone records en masse gives our government the ability to deduce the most personal details of our lives—information that is none of the government’s business, as well as being ripe for abuse. On the flip side, multiple independent reviews have concluded that the program adds little value to counterterrorism efforts.

Moreover, Americans no longer assume that executive branch officials can and should decide national security matters for us in secret. The public debate prompted by Edward Snowden’s disclosures has brought surveillance policy back within the sphere of the democratic process.

Americans across the political spectrum support limiting NSA surveillance by a margin of nearly 2 to 1. Members of both parties in the House of Representatives voted overwhelmingly for the USA Freedom Act two weeks ago. In the face of this popular mandate for change, a vote to extend the status quo would be fundamentally undemocratic.

McConnell is not giving up. His ally in resisting surveillance reform, Senate Intelligence Committee Chairman Richard Burr, R-North Carolina, introduced a bill inaptly described as a “compromise.” The bill would actually expand the government’s surveillance powers by enabling the collection of electronic communication transaction records without any judicial involvement. The government also could compel telephone companies to maintain records they would not otherwise keep in order to have them available for intelligence purposes. Such a “data retention mandate” would create a slippery slope in which all companies that maintain private information about Americans—from doctor’s offices to internet service providers—could be pressed into service as agents of the NSA.

McConnell and Burr will no doubt insist that Congress must either pass this bill or reauthorize the Patriot Act if it wants to hold the terrorists at bay. But the rote invocation of the word “ISIS” does not justify continuing invasive and ineffective surveillance.

It is time to stop treating freedom and bravery as luxuries we cannot afford, and to reclaim them as our nation’s proud heritage. That begins with ending the bulk collection of Americans’ phone records.