Cross-posted on The Hill
A majority of the American public and their representatives in Congress want limits placed on the NSA’s runaway surveillance activities. The USA Freedom Act, introduced by Sen. Patrick Leahy (D-Vt.), would advance this goal by ending the NSA’s bulk collection of Americans’ telephone records. But a week ago, in a last-minute frenzy of caucus-whipping, Minority Leader Mitch McConnell (R-Ky.) engineered a filibuster. Invoking the specter of ISIS, he rallied 42 Senators – all but four of the Senate’s Republicans, plus Democrat Bill Nelson of Florida – to block an up-or-down vote.
More than a year after Edward Snowden revealed the bulk collection program, some might wonder whether this spells the end of surveillance reform. Far from it. Within the next few months, members of Congress will be forced to reach consensus on the fate of bulk collection – and McConnell may well regret having spurned the relatively easy way out that last week’s vote offered him.
The event that will force Congress’s hand is the expiration of three provisions of the Patriot Act on June 1, 2015. These provisions include Section 215, which underlies not only the bulk collection program, but every other instance in which the government acquires business records or other “tangible things” in a foreign intelligence investigation. While most lawmakers support ending or limiting bulk collection, few share Rand Paul’s willingness to end all of the law enforcement and intelligence activities that take place under Section 215 and the other provisions. Doing nothing – as the Senate did last week – will not be an option.
Simply reauthorizing the expiring provisions will not be an option either. Unlike in the Senate, the Republican caucus in the House is heavily influenced by its libertarian wing. Several votes since the Snowden disclosures have demonstrated that House Republicans are nearly as committed as Democrats to surveillance reform, including reforms that go beyond anything in the USA Freedom Act. Any legislation that gets through both houses next June will almost certainly include changes to Section 215.
That means McConnell will have to play ball. If he doesn’t, he won’t be blocking surveillance reform; he’ll be blocking the reauthorization of a standard post-9/11 counterterrorism tool.
Passing USA Freedom in this Congress represented his best hope of a politically painless solution. The bill is a remarkable feat of legislative drafting. Leahy and his cosponsors spent weeks negotiating every detail with the full range of stakeholders. Against all odds, they produced major surveillance reform legislation that is supported by the Director of National Intelligence (DNI), the Attorney General, the ACLU, the NRA, and Google. Had McConnell allowed events to take their course, it likely would have passed in both the Senate and the House, where a very similar bill wasapproved unanimously by the intelligence and judiciary committees.
No other existing proposal offers this hope. The bill that ultimately passed in the House in May waswatered down on the eve of the floor vote after closed-door talks between the Republican leadership and administration officials. While it purports to end bulk collection, its ambiguous language leaves plenty of wiggle room for mischief. If it were offered in the next Congress, tech companies and privacy advocates would have enough advance warning to mount an attack, likely peeling off enough votes to block passage. Senator Dianne Feinstein’s bill is the most conservative proposal – it codifies bulk collection rather than ending it – and would not be supported by any of the relevant players outside Congress. She herself has acknowledged that it has no chance of becoming law.
A National Security Council spokesman stated after the filibuster that the White House will work with Congress to formulate legislation that strikes a “similar balance” to the USA Freedom Act. Replicating that bill’s success in attracting such a diverse base of support will be a challenge, to say the least. Lightning does not often strike twice.
That leaves McConnell facing quite a conundrum come next spring. The Senate will be dominated by “law-and-order” Republicans, and garnering enough support to pass USA Freedom – or something like it – will be much harder than it would be today. But any other option would set up a showdown with the House, which will retain its influential libertarian block and insist on real reform. The resulting battle would expose and aggravate the sharp divisions within the caucus, which already are threatening to tear the party apart.
It’s not too late for McConnell to avoid this ugly outcome: although time is short, USA Freedom could be attached to other legislation in this Congress. Of course, there would still be the ISIS issue. But this was never really about ISIS. DNI James Clapper, who has zealously guarded intelligence agencies’ prerogatives throughout his tenure, says that USA Freedom gives the government the operational capabilities it needs. It allows the government to obtain the records of anyone in contact with a suspected terrorist. The indiscriminate collection of everyone else’s data adds no value – as concluded by the independent panel appointed by the president to review the bulk collection program.
McConnell’s decision was based on politics, not national security. He didn’t want to hand President Obama a victory during the lame duck session. But this was a short-sighted calculus, and he has painted himself into a corner that will prove quite uncomfortable in a few short months. Revisiting surveillance reform during this Congress and passing USA Freedom is his most promising way out of that corner.