Let the Clock Run Out on the NSA

Sheldon Richman

Regarding the feverish effort either to reauthorize, “reform,” or abolish the National Security Agency’s collection of our phone and email data, two things need to be said:

First, thank you, Edward Snowden.

Second, isn’t it great to see the ruling elite panicking?

Of course, the discussion about NSA collection of our “metadata” wouldn’t be happening had Snowden not told us about this spying. Recall that before Snowden’s revelations, Director of National Intelligence James Clapper lied before a Senate committee about mass surveillance of Americans. Later he explained, “I responded in what I thought was the most truthful, or least untruthful, manner by saying ‘no.’” These are the kind of people we’re dealing with.

Keep that lie in mind whenever an official assures us that the government respects our privacy and other liberties. As they say in the law, falsus in unum falsus in omnibus – false in one thing, false in all things.

They’re panicking in Washington because the section of the USA PATRIOT Act (215) that is used to justify collection of phone data expires midnight Monday. True, a federal appeals court has ruled that warrentless bulk data collection exceeds the authority granted by Section 215, but that simply does not matter to some people. Senate Majority Leader Mitch McConnell wants to reauthorize that section and thereby (in his view) preserve NSA spying. Fortunately, enough senators, led by Sens. Rand Paul and Ron Wyden, have stopped him.

The House passed the USA FREEDOM Act (how about outlawing obnoxious acronyms as bill titles?), which may have started out as a sincere effort to limit the NSA but was amended, that is, watered down, into a form that kept some original backers from voting for it. Republican Reps. Justin Amash and Thomas Massie, who oppose unbridled government surveillance, voted no. That bill would prohibit the NSA itself from holding the phone data, but the agency could obtain the data from the telecom companies with approval of the rubber-stamp FISA court.

The Senate, however, couldn’t muster the votes to pass the House bill, which leaves us in our present favorable condition, namely: if nothing happens, the NSA program will die at midnight on Monday. Paul, Wyden, and their allies need only play stall-ball to prevail.

No doubt a last-ditch effort to save the spy program will take place Sunday night, when McConnell brings back the Senate. He is willing to extend Section 215 for just two days, but even this must not be allowed because it will give him more time to gather the votes for a permanent reauthorization of the odious provision. (It’s odious even if it does not actually authorize bulk data collection, which its author, Rep. James Sensenbrenner, says it does not.)

President Obama wants the Senate to pass the House bill, saying it is vital to keeping Americans safe. But no terrorist has been identified through the collection of bulk data. This is also the position of pro-civil-liberties senators who are in a position to know. (Also see this.) Meanwhile, Sen. Dianne Feinstein, a surveillance hawk, has her own bill, which she offers as a compromise, but which can only do mischief with our privacy. The differences between her bill and other possible contenders are over how long the transition should be from government to telecom data collection and storage. That is hardly worth going to the barricades over. And even if the telecoms held the data, how could we know the NSA wouldn’t be able to get it whenever it wants, with gag orders to keep the telecoms quiet. Will Clapper assure us otherwise?

If this all sounds confusing, that’s because it is. Civil-liberties organizations are divided over the House so-called reform package. The grab-bag bill may offer limits on government spying, but any such provisions are likely offset by other clauses that expand and entrench broad surveillance across a range of media. Who can say how it all nets out?

Power thrives in complexity because most people won’t pay attention.

The process is fraught with danger, and I suspect, knowing how Washington works, the Senate will pass the House bill as a compromise. Let’s hope Rand Paul et al. will run out the clock.