There was drama in the Senate last night, as Senate Majority Leader Mitch McConnell struggled to extend a Patriot Act provision that supporters say allows the government to conduct mass surveillance of Americans' calling records. (Opponents think the program is illegal regardless, but the legislative provision has become a focal point for the fight over the larger issue.) But his fellow Kentucky Republican senator, Rand Paul, led the charge to stop him. Wrote the Hill:
The battle between the two Kentucky Republicans spilled over on the Senate floor, with Paul using procedural tactics to force the chamber into an early Saturday vote. He then used his leverage to kill off McConnell’s repeated attempts to reauthorize the expiring National Security Agency (NSA) programs — first for two months, then for eight days, then for five, then three, then two.
It's a tactic advocates of mass surveillance have used repeatedly in recent years:
- They drag their feet on legislation to curtail NSA spying authority until the last possible minute.
- They argue that it would be reckless to let old spying authority expire without an alternative to put in its place.
- Terrified of appearing soft on terrorism, members of Congress have repeatedly extended current authority without changes.
But it didn't work this time, and for good reason.
The NSA program the Senate was debating last night, which collects phone records of every American, was never authorized by Congress in the first place. At least that's the view of the Second Circuit Appeals Court, which ruled the program was illegal earlier this month. While the secretive FISA court disagrees with the Second Circuit, the latter's ruling has stiffened the spines of those who believe the program was illegal from the outset.
And two years after the phone records program was revealed by NSA whistleblower Ed Snowden, the program's advocates still haven't produced any convincing evidence that the program makes us safer.
There's broad agreement that the government should have access to the calling records of suspected terrorists, of course. But there's no reason to think it's helpful to collect the calling records of millions of innocent Americans just in case one of them happens to be a terrorist. And in particular, there's no reason to think that a few days or weeks without bulk collection of telephone records will lead to a rash of terrorist attacks. The US government still has a number of ways to get the calling records of terrorism suspects — these mechanisms just involve more court oversight.
Finally, after years of repeating this tactic, it's become clear that it's just that — a tactic. Mass surveillance advocates are going to use it over and over to keep current law in place indefinitely. Only by saying no to short-term extensions and being willing to actually let the program lapse will reformers have the leverage to insist on serious reforms of the spying agency.