McConnell’s NSA strategy has two big problems he doesn’t even realize

Sen. Mike Lee (R-Utah) tried yesterday to bring the USA FREEDOM Act to the floor, but, as reported in the Hill, Sen. Tom Cotton (R-Ark.) objected, insisting that the Senate deal with fast-tracking the Trans-Pacific Partnership first.

As far as anybody can tell, the strategy of Majority Leader Mitch McConnell (R-Ky.) and Sens. Richard Burr (R-N.C.) and Cotton appears still to be to wait till the last moment and stampede the Senate into a short-term extension of the PATRIOT Act’s most controversial provision, § 215. That would buy them breathing room to convince senators to pass a clean reauthorization; or, if that failed, a compromise between a clean reauthorization and the token surveillance reforms of the USA FREEDOM Act.

It’s not going to work, for three reasons.

First, the votes don’t seem to be there right now for a short-term extension, and the Senate has been burned many times by last-minute PATRIOT Act renewal efforts. They may not be up for getting rolled again.

Second, even if the Senate voted for a short-term extension, there’d be no point. Neither of McConnell’s options is going to fly in the House. The House vote on USA FREEDOM showed that the 88 No voters aren’t secret McConnellites. They’re closer to the views of Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.). More or less all of them voted against USA FREEDOM not because it went unacceptably far, but because it was unacceptably weak.

We can know this because of last year’s StandAgainstSpying scorecard from EFF which, like the NRA, gives legislators letter grades. The No votes got an average A- on that scorecard, meaning that they were very strongly committed to surveillance reform. The mean for the Yes voters was a C, with 162 of the 338 scoring at C or below. It would take 56 of 58 freshmen voting McConnell’s way on either straight reauthorization or a weakened USA FREEDOM Act, for his strategy to work; and the numbers just aren’t there.

On the other hand, a strengthened USA FREEDOM Act, like the version introduced in 2013, with the addition of the provisions in Reps. Lofgren (D-Calif.) Poe’s (R-Texas) End Warrantless Surveillance Act, would start off with the support of the A and B voters, who number 204 non-freshman legislators – an advantage of over 40 votes. It would take only 14 of the 58 freshmen to support reform for McConnell’s strategy to fail – and that seems very likely.

In view of this vote, there’s simply no point in McConnell focusing on a short-term extension and then leaning on the House and hoping it will bend to him.

But that’s not all.

McConnell is pushing a clean reauthorization in the hope that it will enable the mass metadata surveillance programs to keep going. But unfortunately for him – and luckily for the rest of us – a clean reauthorization won’t do that.

Last week’s 2^nd Circuit Court of Appeals ruling in ACLU v. Clapper made this quite clear. The court ruled that § 215 had never authorized mass metadata surveillance, and that those programs were in fact illegal. Looking ahead at what Congress might do, the opinion made it clear that “If Congress fails to reauthorize § 215 itself, or reenacts § 215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end.” If Congress wants such programs to continue, it must explicitly change § 215 to authorize them.

So, if McConnell gets what he’s asking for, the program will end; and if this week passes with the Senate failing to act, the program will end. Only if the token USA FREEDOM Act, which he still opposes, passes, will the programs continue in any form.

At Restore The Fourth, we oppose the PATRIOT Act. We would oppose § 215 even if it hadn’t been grossly misused to authorize mass metadata surveillance. We oppose the USA FREEDOM Act as it stands, because it would let non-individualized spying on innocent Americans continue. So we’re calling on Senators to oppose any reauthorization of § 215, whether a short-term clean reauthorization, a long-term one, or a token reform. It’s time to put this ineffective and wasteful program out of its misery.

Marthews is the national chair of Restore the Fourth.