As Washington heads into the final battle over expiring Patriot Act provisions in the Senate Sunday, the fight over surveillance reform is sparking surprising new alliances between ideologically opposed powerhouses like the American Civil Liberties Union and the Tea Party Patriots, who came together Friday to advocate expiration.
During a joint conference call with reporters Friday, both groups called on lawmakers in the Senate to let expiring provisions of the Patriot Act — including the legal underpinning for the National Security Agency’s bulk telephone surveillance program — sunset without extension or reform.
“We’re finally having a debate now on these surveillance powers that were ran through Congress in the immediate aftermath of 9/11,” executive director of the ACLU Anthony Romero told reporters. “Those who were engaged on this issue at the time were very disheartened that Congress didn’t spend the time to debate the policies, the constitutional issues, the necessity of these greatly enhanced surveillance powers that were enacted.”
“Every time the Patriot Act, or various sections of the Patriot Act, have come up for renewal, it has received a rogue renewal by Congress — a quick rubber stamp by both liberals and conservatives saying that we need to have all these powers to fight the War on Terror.”
The call came ahead of a rare, eleventh-hour session in the Senate scheduled for Sunday, during which Republican Majority Leader Mitch McConnell will make a last-ditch effort at passing a short-term clean extension of Section 215 and two other expiring provisions, or give in to opponents led by Vermont Democratic Sen. Patrick Leahy and Utah Republican Sen. Mike Lee and hold a second vote on advancing the House-passed U.S.A. Freedom Act surveillance reform bill.
The third option — the one touted by both the ACLU, the Tea Party Patriots and championed in the upper chamber by Kentucky Republican and 2016 presidential hopeful Rand Paul — is to let the provisions expire altogether. Last weekend Paul used procedural tactics to force fellow Kentuckian McConnell to hold a series of last-minute votes on the Freedom Act and several clean extensions, all of which ended in failure as lawmakers left town for the week-long Memorial Day recess.
“This is the first time in more than 13-plus years that we’ve had such a robust debate, and it’s time for us to keep that debate going — not to short-circuit it in some kind of eleventh-hour, back-door deal that will get struck or might get struck on Sunday,” Romero said.
White House officials including Attorney General Loretta Lynch and Press Secretary Josh Earnest weighed in on expiration over the last week, repeating the administration’s endorsement of the Freedom Act and criticizing lawmakers for acting irresponsibly.
“Without action from the U.S. Senate, we will experience a serious lapse in our ability to protect the American people,” Lynch said during a press conference at the Justice Department Wednesday.
“The fact is we have people in the U.S. Senate right now who are playing chicken with this,” Earnest said at the White House last Friday. “They are in a situation where they’re going to try to do a two-week extension or a short-term extension on these critical national security authorities, and to play chicken with that is grossly irresponsible.”
Legislative counsel for the ACLU Neema Singh Guliani said that battle over Section 215 is just the first on a number of broad surveillance authorities that have come into question since the leak of sweeping surveillance programs by NSA whistleblower Edward Snowden in 2013.
Among those are administrative subpoena authority, which the DEA used to collect phone records in bulk until 2013, Section 702 of the 2008 FISA Amendments Act, which lets agencies collect the content of electronic communications between Americans and foreigners, and Executive Order 12333 — the authority that lets agencies conduct surveillance anywhere outside the U.S., but incidentally sweeps up Americans’ communications in the process.
“These are three areas in particular where Congress can and should turn, and think about reform as they move forward,” Guliani said.
President and co-founder of the Tea Party Patriots Jenny Beth Martin pointed out how the surveillance debate has already served to educate the public about the technology behind government surveillance, and how invasive data collection can be.
“Metadata seems and sounds very innocuous, until you think about the fact that it is tracking exactly where we are, who we’re talking to, for how long we’re talking to the people, where those people are,” Martin said. “And you start thinking about this information and realize that the government really and truly doesn’t need this information about people who they have no reason to suspect of a crime or terrorism, and it’s violating our freedom and the Bill of Rights.”
The participants were hopeful that the recent federal court decision fought by the ACLU ruling bulk phone record collection under Section 215 illegal will have an impact on other surveillance authorities.
“It laid out in rather clear detail from one of the most well-regarded circuits in the country just how untenable it was that the government was interpreting this statute saying that it could collect all relevant information, and that ‘relevant’ would mean everything,” Romero said.
According to Romero, the fact the court withheld from addressing the constitutional issues in the case left the door open for challenges to authorities such as 702 on constitutional grounds.
“When you have Senator Wyden and Senator Rand Paul, you have the ACLU and the Tea Party Patriots all aligning on this issue and saying its time for the government overreach to stop, and for us to pause and for us to handle the threat of terrorism in a way that still protects our U.S. citizen Fourth Amendment right — it’s very telling to Washington, D.C. and I think it’s reflective of the will of the American people across this country,” Martin said.
Earlier this week the ACLU partnered with technology and civil liberties organizations including the Center for Democracy and Technology, the Electronic Frontier Foundation and others to oppose two alternate reform bills that popped up this week from California Democratic Sen. Dianne Feinstein and North Carolina Republican Sen. Richard Burr — the FISA Reform Act and the FISA Improvements Act.
In a Thursday letter to McConnell and Senate Minority Leader Harry Reid, the groups said both proposals were unacceptable, as neither ends bulk phone metadata collection or installs new privacy and civil liberties oversight of the Foreign Intelligence Surveillance Court. The proposals would also force companies to preserve data that could be retrieved by intelligence agencies later.
“The bills require that collection be based on ‘specific selection terms’ but define these terms so broadly as to raise serious concern as to whether they would significantly curtail the government’s ability to collect large amounts of information of individuals with no nexus to terrorism,” the groups wrote.
“These proposals are unviable, ineffective, and do not offer a path forward.”
