The Marvelous Moment When a Few Patriot Act Spying Powers Sunset
Three powers in the Patriot Act expired on Sunday night. Though temporary, the development marked the first time since the September 11th attacks that the expansive and covert global security state suffered a setback, where power was lost.
It was all because of National Security Agency whistleblower Edward Snowden and a shift in public consciousness brought about by what Snowden revealed about massive government surveillance.
Republican Senate Majority Leader Mitch McConnell was livid as he found himself with no choice but to call for a vote on a motion to debate the USA Freedom Act, a watered-down piece of reform legislation supported by President Barack Obama’s administration and the intelligence community which he had opposed.
On May 20, Senator Rand Paul held the Senate floor for ten and a half hours as he opposed extending provisions of the Patriot Act. His action single-handedly put the Senate in a position, where it would be difficult to prevent expiration.
There was one option: pass the USA Freedom Act, which maintained the “roving wiretap” and “lone wolf” provisions but made changes to the bulk phone records collection program.
On May 22, the USA Freedom Act failed to pass in the Senate. Senators scrambled to save the government’s spying powers. Senator Richard Burr and Senator Dianne Feinstein each proposed their own bills, which would have been very favorable to the country’s intelligence agencies had either piece of legislation gained support.
The Senate’s only alternative to simply letting powers expire was to support a bill that had failed earlier in May. McConnell had to call for a cloture vote on a bill that does not give government the same exact power agencies have had under the Patriot Act. In other words, McConnell had to concede that security hawks would suffer a rare defeat this round.
However, the Senate could not vote on the USA Freedom Act and pass it before midnight because Paul objected. Paul succeeded in forcing expiration of Patriot Act powers, as he had pledged.
People like Senator John McCain and Feinstein were furious with Paul. This is what Feinstein declared after the Senate failed to save the Patriot Act powers from expiration:
The need for investigators to collect intelligence on known or suspected terrorists can’t be overstated. Our national security—not to mention the safety of all Americans—is at stake.
That’s why it’s so irresponsible for one senator to prevent action to extend and reform three key counterterrorism tools for his own political gain. Holding critical national security programs hostage to raise political donations is outrageous, but that’s where we stand today.
Senators incensed by Paul’s actions sought to make it about his grandstanding and his crusading for an ideological cause. Yet, what about their grandstanding and crusading for ideological causes around terrorism?
What about their consistent efforts throughout the past 14 years to promote fear in order to expand spying powers and defend the global security state, which has run roughshod on so many people’s civil liberties?
One of Paul’s major objections was that the USA Freedom Act was going to be passed in an emergency session without any opportunity for senators to present amendments.
Here is one amendment Paul wanted to propose, which he believes he will now be able to push forward:
…One of the things we would like to do is to say that when they search the phone records that they can’t put the name of a corporation in there, that they would have to put an individual’s name.
It’s kind of tricky about the way these things are worded. The wording of this bill will say that they can only put a U.S. person into the selector term to search all the phone records. The problem is that they define U.S. person as also meaning corporation or association or grouping.
So there is a little bit of looseness to the language, and so if we are still going to allow corporation, what is to stop them from going back and putting AT&T or Verizon in the selection and then once again they are looking at all the phone records, and all we have done is transferred the phone records from government control in Utah to phone company control in another location…
Another amendment Paul plans to propose is that the Foreign Intelligence Surveillance Court must adopt the constitutional standard of probable cause under the Fourth Amendment. (Paul proposed a similar amendment in 2011 when the same powers were up for extension.)
Is it so unreasonable to want more debate and to want to be able to amend legislation? That should never be a cause for hyperventilation and panic.
There is a lot that could happen in the next 24 hours. McConnell and other security hawks will undoubtedly seize upon the opportunity to amend the USA Freedom Act so it is more acceptable to them. A few senators in the Senate may try to strengthen the bill with provisions aimed at strengthening privacy protections, but most will likely hold their nose and vote for the reform legislation and squander a key moment to bring about more substantive change.
Regardless of how events unfold in the Senate, a blow against a highly secretive and vast global security state occurred. The tactic of waiting until days before expiration to take action did not create the kind of crisis that had in the past led to a ritual reauthorization of provisions.
What happened may barely put a dent in the global security state. Senators are likely to succeed in restoring some of the lost powers, and many experts will maintain nothing much happened because there were ways for spy agencies to get around the expiration of powers.
Yet, what unfolded matters and should be regarded as a victory for those who are deeply concerned about mass surveillance. It showed the global security state is not entirely invincible. Even if only a handful of senators are willing to take some kind of decisive action on behalf of privacy, gridlock and dysfunction can occur and aid in the dismantling of key programs, which are illegitimate and unlawful.
Witnessing senators scramble to serve the interests of the global security state when no amount of fear-mongering would save the Patriot Act spying powers from sunsetting was momentous. It was a brief bright spot in a long-term struggle that citizens will continue to wage against the government.
And, once more, credit is due to Edward Snowden for helping to make this moment possible.