’Oh what a tangled web we weave, when first we practice to deceive.’ Sir Walter Scott could not have written a more apt fictional parable than the legislative mayhem occurring inside of the Capitol this past week regarding the immediate future of the controversial and secretive National Security Agency’s (NSA) spying program. As we have chronicled in Legal Reader, section 215 of the Patriot Act was the alleged justification for the program that was brought to light by former contractor Edward Snowden in the 2013 massive information leak. That is, until the 2nd Circuit Court of Appeals ruled the justification to be unconstitutional earlier in the month. While the ruling is not binding given that the NSA is overseen by a different jurisdiction, it has likely doomed the provision in the minds and votes of Congress.
Section 215 is set to expire on June 1st, and it would appear that there is not enough political will to extend it, even temporarily. Senate majority leader Mitch McConnell (R-KY), supported by a few powerful leaders in the Senate, began a process weeks prior to the 2nd Circuit ruling to extend section 215 unamended until 2020, however fellow Kentucky Republican and presidential hopeful, Rand Paul’s 10-hour chamber filibuster along with others effectively stalled a vote on this measure until after the Memorial Day recess. A last-minute effort to temporarily extend section 215 for two months also failed early Saturday morning by a 45-54 vote. McConnell has scheduled what is basically an emergency vote on Sunday, May 31st to try one more attempt at passing the 5-year extension. It is unlikely, however, that the House of Representatives will vote in favor of bill even if the Senate does reauthorize section 215.
In addition to the widespread opposition in the House to the NSA spying program in general, chamber leaders may also be dealing with some degree of hurt feelings after the USA Freedom Act, a toned-down NSA program authorization with strong bipartisan support was also rejected by the Senate on Saturday morning. Although the bill, supported by President Obama, passed the House of Representatives by a 338-88 vote, the Senate voted 57-42 in favor of the bill, not enough to avoid the 60-vote filibuster proof majority to prevent its blockage. McConnell has remained in staunch opposition to the bill, calling it “an untested, untried and more cumbersome system,” and saying that, “Section 215 helps us find a needle in the haystack. But under the USA Freedom Act, there might not be a haystack at all.”
This is the second time in as many years that a version of the USA Freedom Act has been blocked in the Senate, and its legislative life has likely ended. Even if McConnell is successful at pulling together a coalition to pass the section 215 extension on May, 31st in the Senate, House leadership, including USA Freedom Act authors, Bob Goodlatte (R-VA) and John Conyers (D-MI), wrote in a joint statement, “The short-term extensions and other proposals being discussed in the Senate don’t have the support to pass in the House of Representatives.” This means that barring any unforeseen changes in posture, the NSA-spying program in its current form may be entering its last days due to congressional brinkmanship.
If section 215 expires with no replacement, the NSA will still be authorized to continue its ongoing investigations, however, obtaining permissions to undergo additional spying will be more difficult to achieve. Sources within the agency who decline to be named did say that there would still be some legal recourse to undergo new spying efforts, albeit not for every case. Even many who oppose section 215 including the president still desire a sensible reform to the NSA-program, but not it’s outright elimination. The legislative battle comes in the wake of the increasing call for “lone-wolf” attacks on foreign soil by ISIS and other terrorist groups. In a Wall Street Journal op-ed, Former NSA director Michael Hayden and former U.S. Attorney General Michael Mukasey called the brinksmanship, the kind of “NSA Reform That Only ISIS Could Love.” Center for Democracy and Technology attorney, Harley Geiger, sees the battle over NSA reform becoming a staple of the 2016 presidential campaign, stating in a Buzzfeed News interview, “We would rather see it sunset than something that offers the veneer of reform.” Others, like Paul, have been vehemently opposed to the program at a fundamental level. Paul, a noted civil libertarian, said during Wednesday’s filibuster, “I will continue to do all I can until this illegal government spying program is put to an end, once and for all.”
Buzzfeed News – Hamza Shaban
U.S. News and World Report/AP – Ken Dilanian
Wired – Kim Zetter