While the country slept Friday night and into Saturday morning, the U.S. Senate debated and voted on whether to alter substantially the NSA’s bulk telephone meta-data collection program, extend it for a short period, or simply let it die on June 1 when the “sunset” provision governing the relevant section (Sec. 215) of the Patriot Act kicks in.
The result?
Well, there was no result. “The world’s greatest deliberative body” could neither pass the bill that would have altered the program nor pass an extension. What’s left is a game of chicken, with the House of Representatives and the Obama administration having backed the reform measure and the Senate leadership—that is, Majority Leader Mitch McConnell—arguing that with the rise of ISIS this was no time to be gutting a counterterrorism tool. But in the absence of either the House or the Senate changing its position and enacting some measure, the Justice Department said it would begin the process of shutting down the program as of last Friday to meet the June 1 statutory deadline. (This coming from a Justice Department that has repeatedly found all kinds of reasons to “interpret” laws to avoid their apparent strictures.)
Watching the three branches of government deal with the legal issues and political controversy over the National Security Agency’s telephony meta-data collection program has not been a pretty picture. Indeed, not a single branch has covered itself in glory.
When the program was first revealed by a leak from former NSA contractor Edward Snowden, it caused quite the uproar. NSA was, without individualized court warrants, sweeping up massive amounts of domestic and foreign telephone meta-data: the number called from, the number called, at what time, and for how long the call was made. Matching that data up with numbers being used by suspected terrorists, NSA was able to look for possible terrorist connections here and abroad and pass that information on to the FBI or CIA. From the headlines and news accounts covering the Snowden’s leak, it seemed the era of “Big Brother” had truly arrived.
But, as referees at football games now say, “upon further review,” it turned out that a.) the NSA was not using the data to snoop on Americans gratuitously; b.) only a select few analysts at NSA had access to the data; c.) the program collected no call content; d.) federal judges associated with the Foreign Intelligence Surveillance Court were overseeing on a regular basis what numbers could be used to query the data base; and e.) members of Congress had been briefed on the program. Moreover, as a constitutional matter, the collection itself was arguably within the boundaries set by the Supreme Court when it came to Fourth Amendment strictures on legitimate government “searches and seizures.”
In spite of these facts, and the fact that his administration had utilized the program throughout his first term, the president acted as though the program was some alien creature—personally choosing neither to defend the intelligence community from the public onslaught nor the program itself. It was nearly a half-year before he spoke out. Even then, he confused matters further by stating no wrong had been committed but still raising the ominous specter of past police state practices. What he offered up were a few half measures designed to address problems that didn’t exist and which appeased no one.
More recently, a federal appeals court concluded that the collection program is not, as the FISA court and the Justice Department had previously argued, authorized by the Patriot Act’s Section 215. The opinion—which relies on far from convincing interpretations of congressional floor statements to reach its narrow reading of Section 215 and virtually ignores the contrary legal opinions of fellow federal judges from the FISC—however ends by punting on whether to enjoin NSA from further collection. Issued precisely when Congress was considering whether to amend the law governing the program or reauthorize Section 215, the Court’s decision amounted to a politically-charged “advisory” opinion, a practice that the federal courts have traditionally and wisely avoided.
Presumably, something has to give. It’s hard to believe that Congress and the administration will simply let Section 215 sunset and the program—modified or not—go out of existence.
The House, for its part, passed by an overwhelming margin (338-88) the USA Freedom Act. The measure would deny NSA from engaging in bulk telephony collection and storage, require the government to obtain separate warrants to request searches by the individual telephone companies of their databases, and would add independent advisors to the court to provide “legal arguments that advance the protection of individual privacy and civil liberties.” At a minimum, the new law would make the intelligence effort more cumbersome. But even this assumes that the telecommunication companies are required to keep call data for an extended period—which is actually not the case under the proposed law. Indeed, given the elaborate privacy protections now in place within the federal government when handling this data, it may be that companies will want to avoid this problem altogether by keeping records for as short as time as possible.
All of which is to say that McConnell and his supporters in the Senate were right to attempt to put a halt to passage of the “reform” measure. What’s more of a problem was the majority leader’s timing. “Better late than never” might be a prudent adage generally, but, given the June 1 deadline, McConnell’s decision to drop his own extension proposal in late April left precious little time to round up support for maintaining the current program or working out some middle-ground that would reduce the problematic aspects of the House passed measure.
Predicting how all of this will turn out is anybody’s guess. But it certainly hasn’t been the government’s most shining hour. Somewhere in Russia, Snowden is probably smiling.
