With Friends Like These

Rand Paul and Mitch McConnell – both Republican Senators from Kentucky – despise the USA Freedom Act for different reasons. As readers know, the Freedom Act ends bulk collection while giving the NSA the ability quickly to query metadata held by telecommunications providers under a narrow and specific court-supervised standard. The bill gives neither civil liberties groups nor the NSA everything they want, but it does give them what they – and the country – need: an end to bulk collection and reforms to the Foreign Intelligence Surveillance Court, and effective, targeted collection for the NSA.

That is why it is so disturbing that Paul and McConnell may unwittingly conspire on the Senate floor this week to thwart the first real chance for surveillance reform legislation in many years. The politics of privacy ordinarily pits an odd bedfellows coalition of civil libertarians of the right and left in a losing battle against the national security establishment’s demand for new surveillance powers. The result has been broader national security powers, but at the cost of narrower public support.

Since September 11, Congress has passed surveillance laws out of fear – both genuine fear that without new powers, the country would be at risk of attack, and political fear that opposing surveillance laws leaves a member exposed to charges of being soft on terrorism. Surveillance laws have passed with large majorities, beginning with the Patriot Act, but only after having been poisoned by a political process that engenders resentment not only among opponents, but also among many supporters. It is no accident that among the strongest critics of NSA’s bulk collection are the original lead sponsors of the Patriot Act – Senator Patrick Leahy (D-VT) and Representative Jim Sensenbrenner (R-WI).

The USA Freedom Act has upended this tired political playbook, offering a hopeful model for a more constructive politics of surveillance reform. The bill was proposed not by the government, but by advocates of NSA reform. It is supported by telecommunications providers and the technology industry and was even backed (for a time) by the ACLU and EFF. It was cautiously embraced by the intelligence community as a workable compromise that preserves essential capabilities.

The new odd bedfellows coalition opposing the USA Freedom Act consists not of principled civil libertarians on the left and right, but of overzealous friends of those on opposite sides who in fact have achieved a principled compromise. Rand Paul yesterday launched a ten-hour filibuster whose stated goal was to kill the bill that would replace NSA bulk collection. As Ben points out, it is the national security equivalent of a government shutdown or threat of defaulting on the national debt. It is just as unsustainable, and arguably even more irresponsible.

If Paul succeeds, civil liberties groups will applaud, but not for long. Three provisions of the USA Patriot Act will expire, putting a halt not only to bulk collection, but also to ordinary FISA court orders for business records, roving FISA wiretaps, and FISA wiretaps of “lone wolf” terrorists. With the so-called Islamic State actively recruiting homegrown terrorists, this would be deeply irresponsible and Congress knows it. The political pressure to reinstate the expired Patriot Act provisions – with or without any reforms – would quickly become overwhelming. Paul’s machinations have no chance of causing the Patriot Act to permanently expire. They could, however, kill meaningful surveillance reform.

Meanwhile, Mitch McConnell also opposes the USA Freedom Act, claiming to be a friend of the NSA. McConnell’s stated goal is to reauthorize the NSA’s bulk collection program without change. This will not happen. The House will not vote for a “clean” reauthorization, and so the result if McConnell wins will be a temporary, but extremely disruptive, intelligence gap.

McConnell has no chance of preserving bulk collection permanently, but he could easily create a highly dangerous period of legal uncertainty. When the pressure results in a temporary reinstatement of the expired Patriot Act provisions, there will still be little cause for celebration at Ft. Meade. In the wake of ACLU v. Clapper – striking down the bulk collection program on statutory grounds – the intelligence community knows that bulk collection is not legally sustainable over the long haul.

What are Paul and McConnell really trying to achieve? It is hard not to suspect ulterior motives. Cynical political maneuvering has long made for great entertainment, from today’s Netflix show “House of Cards” to the writings of Victorian novelist Anthony Trollope, who has recently made a literary comeback. In his novel Phineas Redux, Trollope observed such tactics were common among the politicians of his day. “Dissensions among their foes did, when properly used, give them power—but such power they could only use by carrying measures which they themselves believed to be ruinous.”

Paul’s quest for the presidency depends on the fierce support of disaffected libertarians. McConnell yearns for the days when Republicans ran circles around Democrats on terrorism. A responsible compromise on surveillance reform does not fit with those strategies, yet the posturing this week may well be ruinous to the causes each man claims to hold dear. It would be more fun to watch, if it were not also so dangerous to the national security.