It’s the USA Freedom Act or Nothing

Senate Majority Leader Mitch McConnell on Capitol Hill in Washington, D.C., May 19, 2015.

Senate Majority Leader Mitch McConnell (R-KY) is in a box on the Patriot Act. Two weeks ago, the U.S. House of Representatives overwhelmingly passed the USA Freedom Act—a bill that would reform several Patriot Act surveillance authorities that Edward Snowden’s revelations exposed in 2013. Those authorities are set to expire in less than two weeks and have already been ruled unlawful by the 2nd U.S. Circuit Court of Appeals. The Obama administration and the intelligence community have endorsed the USA Freedom Act as a meaningful reform that protects privacy and maintains sufficient surveillance capabilities.

Now, the only thing standing in the way of meaningful surveillance reform is the Senate majority leader and the sway he has over some of his caucus. The choice for Sen. McConnell is clear: reform government surveillance by passing the USA Freedom Act or allow the Patriot Act surveillance authorities to expire and risk a complete shutdown of the program.

This choice comes almost exactly two years after Edward Snowden revealed the existence of the National Security Agency’s, or NSA’s, bulk collection of Americans’ telephone metadata. The documents Snowden leaked outlined a massive program by which the NSA collected all Americans’ call records under a dubious interpretation of the Patriot Act’s scope, stored that data in its massive computers, and searched it regularly—all with minimal oversight by the Foreign Intelligence Surveillance Court. The exposure of this surveillance, as well as other programs, shocked the conscience of Americans and many around the world. Congress, however, has not yet adopted any reforms to these authorities. That is about to change.

When Congress last extended the specific Patriot Act provision now at issue, it included a sunset provision, meaning the authority would expire on June 1, 2015 if not reauthorized or modified. Congress has faced similar deadlines on this and other Patriot Act sunset provisions numerous times in the past decade. There’s a familiar pattern: Congressional leaders wait right up to the point where the authorities would expire and use this shut-off date as leverage in order to forestall debate and simply reauthorize the authorities. That was the playbook Sen. McConnell was operating with in the lead up to this reauthorization debate. The House, however, flipped the script when it recently passed the USA Freedom Act by an unexpectedly massive 338-88 margin.

Importantly, of the 88 who voted against the USA Freedom Act, the majority did so because they believe it did not go far enough in modifying NSA surveillance.

Sen. Rand Paul (R-KY) agrees with those in the House who opposed the USA Freedom Act on these grounds. Sen. Paul threw another wrench in the works on Wednesday by taking to the floor of the Senate and delivering an 11-hour speech that ate into the already tight timeline. Sen. Paul’s actions likely forced any Senate consideration of these expiring surveillance authorities to occur after the House has already adjourned for the weeklong Memorial Day recess. That significantly limits Sen. McConnell’s options because the House would have to return to Washington to pass his favored short-term extension.

The USA Freedom Act, while far from perfect, is a real reform to how the U.S. government conducts surveillance on Americans. It would get the government out of the bulk collection business by ending the NSA’s practice of mass metadata collection while preserving law enforcement agencies’ capability to access the data under court supervision. It would also constrain the FBI’s use of national security letters—a practice that is similar to a subpoena but is not overseen by a judge.

This version of the bill is a compromise of a compromise, and it does not include important minimization procedures that were in earlier versions. In a successful effort to garner increased conservative support in the House, it extends the mandatory minimum sentence in material support for terrorism cases from 15 years to 20 years. Even though it contains these flaws and provides only incremental reform—rather than the major change that some were hoping for—it would still be a massive victory for advocates of a more restrained surveillance state and perhaps the first meaningful win for these advocates since 9/11.

The 2nd U.S. Circuit Court of Appeals further added to reform advocates’ leverage with its recent opinion that the Patriot Act provision at issue “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.” The 2nd Circuit is not the last word on the ultimate lawfulness of the program, as the Supreme Court could reverse its decision. However, it would be extremely reckless for Congress to reauthorize an unchanged national security surveillance program that has already been ruled illegal.

Sen. McConnell is now returning to the old playbook by claiming that time is running out before the provisions expire and recommending a short-term reauthorization in order to ensure that the authorities do not expire. But it is Sen. McConnell who has his back against the wall and reform advocates who have all the leverage. Bipartisan reform legislation has passed the House, and President Barack Obama will sign it. An unchanged program faces an uncertain future in Congress and the courts. It’s the USA Freedom Act or nothing.

Ken Gude is a Senior Fellow with the National Security Team at American Progress.