The USA Freedom Act, passed in the Senate yesterday by a 67-32 vote and quickly signed by the president, purports to “reform the authorities of the Federal Government” to (among other things) conduct electronic surveillance for “foreign intelligence, counterterrorism, and criminal purposes.”
Many of those authorities — which the National Security Agency (NSA) has used to justify the collection of phone records — had been found in provisions of the USA PATRIOT Act that expired at midnight Sunday night. Therefore, Congress could have eliminated those surveillance powers merely by doing nothing.
Despite promises made by its supporters, the USA Freedom Act doesn’t end government snooping. It merely shifts the responsibility for collecting communications metadata from the NSA to companies such as AT&T, Sprint, and Verizon, which already keep customer records for as long as five years. The NSA or the FBI would simply need to obtain permission from the secret FISA Court to access that data — and the court nearly always grants it.
After H.R. 2048 reached the Senate, a three-way battle erupted among senators who wanted to pass that legislation; Senate Majority Leader Mitch McConnell, who opposed even its very limited restrictions on NSA snooping and wanted to renew the expiring portions of the PATRIOT Act intact; and those such as Rand Paul (R-Ky.), who opposed both the PATRIOT Act and the USA Freedom Act.
Paul took to the Senate floor for 10 and a half hours on May 20 to hold up McConnell’s bill that would have extended the government’s surveillance authority to the end of 2020.
Though McConnell, as noted above, opposed the USA Freedom Act because he was against limiting the NSA’s powers, Paul opposed it because it extends government surveillance authority while pretending to limit it. Both men were among the 32 senators casting “Nay” votes against H.R. 2048.
McConnell expressed his opposition to the bill in strong terms:
I cannot support passage of the so-called USA Freedom Act. It does not enhance the privacy protections of American citizens, and it surely undermines American security by taking one more tool from our war fighters, in my view, at exactly the wrong time.
Though his opposition to the bill was for different reasons than Paul's, the junior senator from Kentucky probably wouldn’t disagree with McConnell’s use of the adjective “so-called” and his statement that the bill “does not enhance the privacy protections of American citizens.”
Senator Paul’s father, former Rep. Ron Paul (R-Texas), has publicly criticized the USA Freedom Act. He stated in a column published early last month:
The USA FREEDOM Act has about as much to do with freedom as the PATRIOT Act had to do with patriotism. If Congress truly wanted to protect our liberties it would pass the Surveillance State Repeal Act, which repeals the PATRIOT Act. Congress should also reverse the interventionist foreign policy that increases the risk of terrorism by fostering resentment and hatred of Americans.
Representatives Thomas Massie (R-Ky.) and Mark Pocan (D-Wis.) introduced the Surveillance State Repeal Act (H.R. 1466) on March 24.
The Surveillance State Repeal Act would completely repeal the 2001 PATRIOT Act. Additionally, the bill would repeal the FISA Amendments Act, which contains provisions for e-mail data harvesting, would also make retaliation against federal national security whistleblowers illegal, and would require that any FISA collection against a U.S. person takes place only pursuant to a valid warrant based on probable cause.
NPR reported Obama’s statement welcoming passage of the USA Freedom Act:
Enactment of this legislation will strengthen civil liberty safeguards and provide greater public confidence in these programs. I am gratified that Congress has finally moved forward with this sensible reform legislation.
But the Associated Press also reported that the president was critical of members of Congress who held it up:
After a needless delay and inexcusable lapse in important national security authorities, my administration will work expeditiously to ensure our national security professionals again have the full set of vital tools they need to continue protecting the country.
The Executive Office of the President issued a statement on May 7 (the day before the legislation passed the House), saying: “The Administration supports swift House passage of the USA FREEDOM Act, and urges the Senate to follow suit.”
The backing of the Obama administration should have been enough to make most Republicans wonder what was wrong with the USA Freedom Act, but few members of the GOP share Rand Paul’s commitment to the principles once so eloquently expressed by Benjamin Franklin: “Those who would give up essential liberty to purchase a little temporary safety deserve neither Liberty nor Safety.”