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Why Congress Awoke From Its National Security Slumber

In passing the USA Freedom Act, Congress adopted a less panicked approach to terrorism.

June 5, 2015

In the waning weeks of the 2004 presidential race, John Kerry told the New York Times Magazine his vision of what it would take for Americans to feel secure again after the horrors of September 11th. “We have to get back to the place we were,” Kerry said, “where terrorists are not the focus of our lives, but they’re a nuisance.”

The Democratic nominee, a former prosecutor, went on to compare containing terrorism to combatting nuisance crimes like gambling and prostitution. “We’re never going to end illegal gambling,” Kerry said. “But we’re going to reduce it, organized crime, to a level where…it’s not threatening the fabric of your life.”

Three years after the Twin Towers toppled, Kerry’s calming vision instantly became a political target. (Granted, the prostitution analogy was politically maladroit).

George W. Bush, locked in a tight reelection battle, assailed the words  “as new evidence that Senator Kerry fundamentally misunderstands the war on terror.” Bush’s subsequent narrow victory (a 117,000-vote margin in Ohio) cemented the political orthodoxy that anything other than vowing unrelenting eternal war against terrorists was a dangerous sign of weakness.

A decade after Kerry lost his bid for the White House, his vision was finally achieved this week as Sunday night flowed into Monday morning on Capitol Hill. Amid the drama over the expiration of key provisions of the Patriot Act on May 31st, the extraordinary thing was that a national security law had been caught up in ordinary congressional gridlock.

The missed deadlines, the all-night sessions and the rejection of short-term extensions are all part of the fabric of how Congress has been dealing with domestic legislation for years. Suddenly, the National Security Agency’s ability to vacuum up telephone records was treated in the same graceless fashion as, say, funding the Panda Cam at the National Zoo.

Laws passed in the panicky aftermath of 9/11 actually expired for two days this week—and then were renewed with new civil liberties safeguards. And, believe it or not, Sharia law has not been imposed on Wichita or Mobile or anywhere else as a result. Nor have the 67 senators who voted for the reform bill (the ungainly named USA FREEDOM Act) jeopardized their political futures.

Sure, there was apocalyptic rhetoric. Senate Majority Leader Mitch McConnell called the vote “a resounding victory for those currently plotting attacks against the homeland.” But that too has become par for the course in Washington where virtually everything (except maybe naming post offices) has become an opportunity to accuse political foes of weakening America.

How much the new legislation (signed by Barack Obama Tuesday night) will actually curtail the excesses of the NSA depends on both the current president and his successor in the White House. But with the exception of Rand Paul and Bernie Sanders (two senators unlikely to move down Pennsylvania Avenue in 2017), it was hard to find anyone in the presidential field championing privacy rights over terrorist fears.

Some Republican contenders reveled in the chance to display their tough-guy credentials on the issue. Both Marco Rubio and Lindsey Graham voted against the NSA reforms, while Jeb Bush issued a statement lamenting the loss of “an important tool helping law enforcement and the Intelligence Community connect the dots.” GOP firebrand Ted Cruz did vote for the USA FREEDOM Act, but none of his public statements suggested that he was too happy about it.

As for Hillary Clinton’s position on reforming the NSA…well…you have to ask her. Alas, the former secretary of state and New York senator only takes questions from reporters on a monthly basis, so you may have to wait. But her record as one of the more hawkish Democrats around suggests that, as president, she would have little zest for a major rethinking of the premises that have governed our approach to terrorism over the last 14 years.

Some of the Hillary hesitancy can be explained by the polls. A CNN/ORC Poll conducted last week found that 61 percent of Americans wanted to continue to allow the NSA to practice unlimited data collection.

On a complex topic like this, question wording matters. Which is why it may be more telling that in January the Pew Research Center asked whether the government has gone too far in restricting civil liberties to battle terrorism or whether it has not gone far enough. In this case, 37 percent of Americans worried about civil liberties while 49 percent wanted the government to be even more aggressive in fighting terrorism.

Polling on terrorism is, not surprisingly, influenced by news headlines. But looking at the data over time, the constituency for taking a less panicked approach to the terrorist threat is around 40 percent of the electorate. That is a significant minority. But, as presidential candidates undoubtedly note, that is not a voting majority.

In contrast, the polarization of Congress means that legislators, for the most part, are more worried about primary threats than challenges in the general election. As a result, both House members and senators are keenly sensitive to the concerns of the libertarian right and the civil liberties left on issues like NSA data collection.

It has been four decades since the Senate took the lead in investigating and publicizing the abuses of the CIA in fighting the Cold War. Now, after a Rip Van Winkle slumber, the Congress has begun to rein in the out-of-control data collection policies of the NSA.

Moments like this—rare in the history of congressional oversight of national security—deserve to be savored. Maybe John Kerry was right. Maybe some day soon terrorist incidents will be considered a low-level concern rather than the dominant theme of life in 21st century America. 

(Photo: ArbyReed)

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

Walter Shapiro is an award-winning political columnist who has covered the last nine presidential campaigns. Along the way, he has worked for The Washington Post, Newsweek, Time, Esquire, USA Today and, most recently, Yahoo News. He is also a lecturer in political science at Yale UniversityHe can be reached by email at and followed on Twitter @MrWalterShapiro.