McConnell’s NSA surveillance problem

When Sen. Rand Paul (R-Ky.) talks about civil liberties, privacy rights or the National Security Agency (NSA), he gets incredibly animated and passionate. U.S. intelligence agencies, he argues, must have a constitutional check on their extraordinary power to collect information on American citizens. More than any other issue, the NSA and government surveillance is at the heart of why Paul decided to run for the U.S. Senate in the first place, and it’s a topic that he can easily use to distinguish himself from a crowded, overwhelmingly hawkish Republican presidential field (Sen. Ted Cruz of Texas is perhaps the exception: he also supports NSA reform, albeit he’s taken a more gradualist approach to the question).

As Chris Cillizza of The Washington Post put it perfectly in a May 12 post, the upcoming NSA surveillance debate is “a golden opportunity for [Paul] to refocus and resell himself as the last man of principle left in the nation’s capital.” Paul appears to be taking Cillizza’s advice to heart: In addition to threatening a filibuster if the Senate Republican leadership tries to reauthorize the bulk data collection program under the USA Patriot Act, he wrote in TIME magazine that “[t]he sacrifice of our personal liberty for security is and will forever be a false choice.” Paul went on to conclude by writing, “I refuse to relinquish our [c]onstitutional rights to opportunistic and overreaching politicians.”

Before the unauthorized Edward Snowden leaks to The Guardian and The Washington Post two years earlier, Paul’s view would likely have been cast aside by many of his Republican colleagues as fringe or naive in a world that is crawling with security threats to the U.S. homeland. Since the Snowden revelations, however, a growing membership in both the House and the Senate — Republican and Democratic alike — have been working to reform the surveillance system from within. The USA Freedom Act, a bipartisan piece of legislation that was defeated by a Republican filibuster last fall, is up for discussion once again in the halls of Congress. And, despite Republicans now holding the majority in the Senate, proponents of overhauling the bulk collection of phone metadata on tens of millions of Americans appear confident that they will succeed where they failed last year.

{mosads}The legislation, 122 pages in length, was passed out of the House Judiciary Committee on a strong 25-2 vote and sailed through the full House last Wednesday on a 338-88 bipartisan tally. However, all is not well for the NSA reformers: In fact, they will run into considerable trouble when surveillance legislation hits the Senate floor. Indeed, as Senate majority leader, Mitch McConnell (R-Ky.) is in a better position to thwart any changes to the bulk collection program. Rather than organizing a filibuster against USA Freedom like he did last November, all he needs to do is refuse to take up the USA Freedom Act. This is likely McConnell’s first choice, because the senior senator from Kentucky has demonstrated to his Senate colleagues that he’s in no mood to compromise over NSA surveillance. Late on Thursday night, May 14, McConnell defied some members of his caucus by filing his own bill that would reauthorize the Section 215 business records provision for another two months — a precursor to what many civil libertarians suspect is a legislative maneuver to add more time on the calendar to lobby colleagues to his side. “[S]ection 215 helped us find the needle in a haystack,” McConnell said during floor remarks, “but under the USA Freedom Act, there may not be a haystack to look through at all.”

Unfortunately for McConnell — who is one of the best tacticians, if not the best, in the Senate — he may not have much choice but to go along with the NSA reformers due to the chamber’s condensed calendar. Because Section 215 expires on June 1, McConnell will only have until the end of the week to arrive at some sort of compromise in order to retain at least some of the NSA’s authority to search telephone metadata — something that the USA Freedom Act allows the NSA to do, as long as they receive a court order to access the data specific to an authorized counterterrorism investigation. Although McConnell may hope to use the short calendar to pressure his colleagues to support a clean reauthorization, it will be a nearly impossible task for him to pick off enough Senate Democrats to meet the 60-vote threshold. The entire Democratic caucus wants the USA Freedom Act, not an extension of the USA Patriot Act, to be the law of the land.

Because he doesn’t have the support for his five-year reauthorization, McConnell has three choices: push for a short-term extension in order to continue debate on a better surveillance package; refuse to take up USA Freedom and be blamed for taking away the NSA’s power to look at any telephone metadata; or relent and pass the USA Freedom Act despite his earlier opposition. The first option (a short-term reauthorization) is the best option McConnell has at the moment, since it would extend the NSA program that he’s supported throughout his Senate career and give lawmakers more time to water down some of the provisions in the USA Freedom Act. That option, however, may not fly in the House, where the authors of the USA Freedom Act — Jim Sensenbrenner (R-Wis.), Bob Goodlatte (R-Va.), John Conyers (D-Mich.) and Jerrold Nadler (D-N.Y.) — have purportedly ruled out “any extension of the NSA’s bulk collection program.”

If Mitch McConnell is as supportive of the National Security Agency as he says he is, he will be the pragmatic legislator that he’s always been throughout his career: looking for where the most votes are and allowing a full and open debate. Right now, USA Freedom appears to have the most votes. Section 215 as it currently stands, does not.

DePetris is a Middle East analyst for Wikistrat, Inc, a geopolitical risk consultancy, and an independent foreign policy consultant.