The Failure Of NSA Reform

The USA Freedom Act was voted down last night. Ronald Bailey is disappointed in Rand Paul, who voted against the bill because it didn’t go far enough:

Paul and the rest of his fellow citizens may well come to rue the day that he allowed the perfect to get in the way of the merely better.

Julian Sanchez likewise finds it “hard to see how blocking this particular set of reforms makes it any more likely that other important changes to the law will be passed”:

Ending the bulk collection of communication records under one group of authorities may only be the first step on a long road to more comprehensive surveillance reform, but taking that step enables privacy groups and civil libertarian legislators to devote their full focus to building consensus around subsequent steps, like amending (if not eliminating) the general warrant authority created by §702 of the FISA Amendments Act of 2008.

Sen. Paul’s primary objection thus far has been that the USA FREEDOM Act “reauthorizes the PATRIOT Act,” which is rather misleading. The vast majority of the PATRIOT Act is, alas, permanent and in no need of reauthorization. Three provisions will, in fact, expire in 2015: The §215 business records authority under which the NSA’s bulk telephony program is operating, the never-used “lone wolf” provision blessing the use of intelligence tools against foreigners suspected of terrorism but unaffiliated with any larger group, and the “roving wiretap” authority giving analysts discretion to intercept a target’s communication across multiple communications channels without specifying them in advance to a court.

However, Trevor Timm anticipates that “the the USA Freedom Act’s failure could backfire on its biggest supporters”:

As I’ve mentioned before, Section 215 of the USA Patriot Act – the law that was re-interpreted in secret to allow for mass phone metadata surveillance in the first place – comes up for renewal next summer. It has to be reauthorized before June, or it will disappear completely.

And even though the Republicans will be in control next year, they won’t be able to pull the same stunts they did on Tuesday. Everyone knows getting “no” votes is a lot easier than getting a “yes”. And this time they’ll need 60 “yes” votes, plus the support of the House of Representatives, where we know already there are likely enough votes to kill an extension of the Patriot Act.

Ed Morrissey also looks ahead:

The USA Freedom Act is now dead until the next session. Leahy moves to the minority, which means Chuck Grassley will have to take up NSA reform starting in January, putting its direction under Republican control. Rand Paul will probably like that result less than this effort, and it will be interesting to see whether Republicans can make up whatever votes they lose in the Democratic caucus from within their own without Paul’s endorsement.

Greenwald, meanwhile, believes “the last place one should look to impose limits on the powers of the U.S. government is . . . the U.S. government”:

The entire system in D.C. is designed at its core to prevent real reform. This Congress is not going to enact anything resembling fundamental limits on the NSA’s powers of mass surveillance. Even if it somehow did, this White House would never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National Security State operates with no limits and no oversight means they’d easily co-opt the entire reform process. That’s what happened after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA “oversight” court—the committees were instantly captured by putting in charge supreme servants of the intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and “Dutch” Ruppersberger, while the court quickly became a rubber stamp with subservient judges who operate in total secrecy.