By Michael Hernandez
WASHINGTON
A major showdown between privacy rights advocates and security hardliners is set to take place Sunday in the Senate as lawmakers prepare to take up revised security powers for America’s intelligence community.
At stake is the USA Freedom Act, a bill that aims to rework the Patriot Act’s controversial phone metadata collection program.
The House of Representatives passed the act last week in a landslide 303-121 vote, with little more than a week left before key provisions, including the mass data collection item, expire at month’s end.
But last Saturday, the Senate fell three votes short of the necessary 60 to pass the bill as lawmakers prepared for a one-week recess.
In addition to the metadata provision, known as Section 215, two lesser known powers will expire if the Senate fails to pass the Freedom Act by midnight Sunday – a thus far unused “lone wolf” tool that allows law enforcement to gather intelligence on terror suspects not formally associated with organizations, and a roving wiretaps tool that allows for surveillance on all communications devices used by a terror suspect.
Prompted in large part by public outcry following the data collection program’s public outing by former NSA analyst Edward Snowden, the bill seeks to reign in the bulk data collection program in a key way: no longer would the NSA and other intelligence agencies be allowed to collect en masse Americans’ communications records.
Instead, businesses would be expected to hold on to the information until an intelligence agency received an intelligence court’s order based on a “specific selection term”.
President Barack Obama has adamantly defended the bill, emphasizing that it revises the way intelligence agencies gain access to personal phone metadata.
“I strongly urge the Senate to work through this recess and make sure that they identify a way to get this done,” Obama said at the White House earlier this week. “This needs to get done. And I would urge folks to just work through whatever issues can still exist, make sure we don't have, on midnight Sunday night, this task still undone, because it's necessary to keep the American people safe and secure.”
White House press secretary Josh Earnest further said that the tools have “provided valuable information in the past.”
It’s not clear, however, if the expiration of the Patriot Act’s provisions would spell a death knell for American security.
Ken Gude, a senior fellow at the Center for American Progress said the heated security rhetoric from those who see the bill's possible failure as a threat to national security can be attributed to “political direction and the political point much more than the actual substantive authorities.
“Here what we have is one of the, if not the, first times since the original passage of the Patriot Act in which Congress seems very likely to restrain or reign in some of the national security authorities that exist today. And that is a big political shift,” he said.
The national security community has begrudgingly given its seal of approval to the Freedom Act in the hopes that it can still have access to an altered form of the metadata program.
Last week the Justice Department’s Office of the Inspector General was the latest in a growing chorus of scrutiny on Section 215’s usefulness.
The office’s review of the FBI’s use of the tool from 2007 through 2009 found that while it produced tangential benefits, its use did not result in any investigative breakthroughs.
“The agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders,” the report’s authors wrote, noting that the agents who were interviewed said that it did support other investigations and helped corroborate other information.
Critics, most notably Republican Sen. Rand Paul, have dismissed the bill as a threat to American civil liberties, and questioned its usefulness in the U.S.’s counterterrorism efforts.
Paul, who led an 11-hour filibuster in the Senate last week in a bid to derail the bill, wrote in a Richmond Times-Dispatch op-ed with Rep. Dave Brat that the act’s wording “leaves considerable gaps in privacy protections.”
“While the USA Freedom Act certainly creates some very needed reforms, we’ve seen what happens when the executive branch isn’t limited by Congress’ checks and balances,” the lawmakers wrote. “This administration and some government officials think that violating your right to be secure against unreasonable searches and seizures is essential for national security.”
The Fourth Amendment of the Constitution stipulates that unreasonable searches and seizures are illegal.
With senators returning to Washington for a rare Sunday session to take up the bill this weekend, there’s “very little chance” that it will be passed, said Gude.
“Sen. Paul has staked so much on his opposition, not only to the current law, but to the USA Freedom Act, and given his position in the Republican presidential primary it seems hard for me to find a scenario in which he backs down,” he said.
Paul is likely to deny unanimous consent for the bill to procedurally move forward in the Senate on Sunday, setting the stage for him to carry out a second attempt at a filibuster – though this time he will have to hold out only mere hours before the Patriot Act’s authorities expire.
