Less than a week after a US appeals court delivered a stinging legal rebuke to the National Security Agency’s bulk collection of US phone data, the House of Representatives is set to vote on the most domestically controversial of Edward Snowden’s revelations.
Passage on a bipartisan basis is expected for the USA Freedom Act on Wednesday, a bill that seeks to stop the NSA from collecting the metadata of all US phone calls. The White House announced its support for the bill, which faces two-pronged opposition from civil libertarians who consider it insufficient and the GOP Senate leader who seeks to preserve the domestic surveillance.
The USA Freedom Act “strikes an appropriate balance between significant reform and preservation of important national security tools,” the White House said, urging the Senate to “follow suit” on passage.
A version of the bill passed the House by a large margin in last year’s Congress, but failed to overcome a critical threshold during a Senate vote in November. Supporters revived it using the leverage of imminent expiration of a broader surveillance authority.
Absent explicit congressional reauthorization, a controversial provision of the 2001 Patriot Act, known as Section 215, will end next month. The Federal Bureau of Investigation relies on section 215 for access to a wide category of business records for terrorism investigations outside normal subpoena and warrant restrictions. Since 2006, the NSA has relied on section 215 for the ongoing daily collection of all US phone metadata, a practice begun secretly in the weeks after the 9/11 attacks.
The USA Freedom Act would bar bulk collection of domestic phone data under Section 215 while extending the overall authority for another four years. While many privacy groups and tech companies back the bill, several other civil libertarian groups consider it an insufficient step, favoring a full elimination of Section 215 and noting that the bill would leave the vast majority of the NSA’s bulk collection powers untouched.
Privacy advocates who oppose the USA Freedom Act consider the bill to squander the unique legislative opportunity afforded by Section 215’s expiration. “The disclosures of the last two years make clear that we need wholesale reform,” Jameel Jaffer of the ACLU argued last month.
An architect of the Patriot Act and the USA Freedom Act, Wisconsin Republican James Sensenbrenner has argued that the Patriot Act never envisaged the undifferentiated mass collection of American phone records. Last week, his interpretation was bolstered by a three-judge panel that excoriated the NSA program as illegal on its face.
“We hold that the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,” the second circuit court of appeals found on Thursday, contradicting nearly two years’ worth of assurances from the White House, the NSA and their supporters after the Guardian revealed the bulk surveillance in June 2013.
But the judges stopped short of either ruling the program unconstitutional or mandating an end to it, punting to the already unfolding congressional debate for a resolution.
The ruling increased pressure on Senate majority leader Mitch McConnell, author of a bill to preserve Section 215 without any abridgement of the phone-records bulk collection.
Yet McConnell has not backed off his position. In a Monday speech, McConnell called the program “an important tool to prevent the next terrorist attack,” although even the NSA has conceded that it has never prevented any terrorist attack.
It is unclear if McConnell will schedule a Senate vote on the USA Freedom Act should the House pass it. Last week, Texas senator John Cornyn, the second-ranking Republican in the Senate, said he supported a short-term, clean reauthorization of the Patriot Act to give lawmakers more time to negotiate.
The Senate is largely split into three factions on the issue of surveillance: GOP leaders and intelligence hawks who want to keep the NSA programs intact; a bipartisan group that has introduced its own version of the USA Freedom Act; and civil liberties advocates who want to end the bulk collection entirely.
Adding to the pressure on McConnell are high-profile presidential politics that have pitted three Republican senators seeking the 2016 GOP nomination against one another.
Kentucky senator Rand Paul has made opposition to bulk domestic surveillance a cornerstone of his presidential campaign. Along with Oregon senator Ron Wyden, a Democrat on the intelligence committee and longtime critic of overbroad surveillance, Paul has pledged a bipartisan filibuster of any attempts at wholesale reauthorization of Section 215.
At the opposite end of the spectrum, Florida senator Marco Rubio is an ardent proponent of the NSA programs and is pushing for a full Patriot Act reauthorization. Since launching his campaign last month, Rubio has positioned himself as the top defense hawk in a crowded GOP primary, where national security has emerged as a high priority issuefor likely Republican voters.
“There is not a single documented case of abuse of this program,” Rubio wrote in a USA Today op-ed published Monday. “Internet search providers, internet-based email accounts, credit card companies and membership discount cards used at the grocery store all collect far more personal information on Americans than the bulk metadata program.”
Texas senator Ted Cruz, a rival to Paul for the libertarian voting bloc, is an original co-sponsor of the Senate’s version of the USA Freedom Act and said he was urging GOP leadership to bring the bill up for a vote and allow it to pass. Asked by the Guardian on Tuesday if he agreed with Paul’s assessment that the bill did not go far enough, Cruz said the legislation “strikes the appropriate balance and, critically, ends the government’s bulk collection of phone metadata from law-abiding citizens”.
He added: “It respects the Fourth Amendment privacy rights of Americans, and at the same time it ensures that law enforcement has the tools to target radical Islamic terrorists. If there is probable cause to suspect an individual of working with terrorists, seeking to injure or murder other Americans, we need to have the tools to prevent those attacks before they occur.”
John McCain, the Arizona senator who was the Republican presidential nominee in 2008, said all parties should be willing to sit down and negotiate.
“There’s two ends of the spectrum that will never agree to anything, but what we need is 60 votes,” McCain told the Guardian.
McCain, a staunch defender of the intelligence community, said he would like to see the Patriot Act renewed but was open to talks that would improve the programs.
GOP leaders had planned to move to the Patriot Act after a vote on Barack Obama’s trade agenda – a contentious issue that failed to overcome a Democratic filibuster on Tuesday. The same evening, senators attended an all-member, closed-door briefing on FISA.
The key provisions of the Patriot Act that deem the federal government’s dragnet surveillance legal are set to expire on 1 June.