WASHINGTON -- When several key provisions of the broad, post-9/11 surveillance law known as the Patriot Act were up for renewal five years ago, the Senate debated for just 20 seconds before reauthorizing the sweeping powers by a voice vote. The following day, the House followed the upper chamber’s lead, voting 315-97 to extend the act’s most controversial elements.
Five years later, the political landscape around government surveillance has shifted. Last month, the House voted 338-88 to pass a bill that would limit the government’s ability to collect and store information on Americans’ phone calls. The bill, called the USA Freedom Act, would leave much of the Patriot Act in place. But it would put phone companies, rather than the government, in charge of collecting and storing information on phone calls, which the government would only be able to search with specific queries. (Sixty of members of Congress who voted against the bill in the House said they only did so because they thought it left the spying agency with too much power.)
Mitch McConnell, the leader of the Senate Republicans, pushed for a five-year extension of the Patriot Act and claimed the House bill left Americans vulnerable to terror attacks. But Sen. Rand Paul, McConnell’s fellow Kentucky Republican, made surveillance reform the centerpiece of his 2016 presidential campaign and argued that the House bill was too weak, forcing a standoff. McConnell delayed a vote on the House bill until late Sunday, hoping that Paul and his allies, faced with the prospect of the expiring Patriot Act provisions, would cave and extend the existing law.
Paul emerged as the clear victor in this game of chicken. Late Sunday night, three key sections of the Patriot Act lapsed, all but scuttling McConnell’s hopes for a full-fledged renewal of the law. Paul will gum up the works for a few more days. But the House bill -- complete with its limits on the government's bulk collection of data on Americans' phone calls -- seems increasingly likely to become law.
So what changed between 2010 and 2015?
“Because of Edward Snowden, there’s a perception -- which is not true -- but there’s a perception that we’re invading people’s privacy,” Sen. Bill Nelson (D-Fla.), explained last month. “This would presumably take care of that,” he added, referring to the USA Freedom Act, which he voted against in 2014 but now supports as a better alternative to a complete lapse of the Patriot Act.
Nelson isn’t the only Washington lawmaker who has struggled to articulate Snowden’s influence on the debate that has kept senators up late and away from home for two weekends now. It’s hard to give credit to someone you want imprisoned. But on Sunday night, as tempers frayed, vote-counters strategized, and Rand Paul talked, senators could no longer avoid talking about the ex-NSA contractor’s disclosures.
“It’s why we’re here,” Bob Corker (R-Tenn.), the chair of the Senate foreign relations committee and a fierce NSA defender, said of the Snowden disclosures. “People began creating a myth around it. That did occur. The public discourse around it created a myth about what this program is and what it isn’t.”
Sen. Jeff Flake (R-Ariz.), who entered the Senate months before the Snowden leaks, agreed. “It is clear we wouldn’t be here without that information,” he said. “I’m not saying that there were violations of people’s civil liberties. There weren’t. But we certainly are taking a bigger role now in oversight.”
Lawmakers on the other side of the debate -- including a handful of senators who have spoken out against NSA overreach for years -- won’t praise Snowden, either. But they will acknowledge that he drew public attention to their fight, making it easier for them to talk about what they had promised to keep secret.
“I had been briefed on virtually all of it,” said Sen. Dick Durbin (D-Ill.), the Senate minority whip and a former member of the Senate Intelligence Committee. Durbin voted for the Patriot Act extension in 2005 but has opposed every subsequent reauthorization. “Our speeches were almost humorous because I kept referring to things I knew, but couldn’t say,” he continued, referring to his earlier efforts to explain why reform to the Patriot Act was needed. “I couldn’t speak about it publicly. I just made general and vague references to the issue. It’s tough to carry the debate with your hands tied."
“We knew well before the Snowden disclosures what was going on,” said Sen. Ron Wyden (D-Oregon). “I began this battle to eliminate bulk phone record collection back in 2006. And at the beginning, I could have fought it from a phone booth. There were just a handful of us."
Six months into his first term in office, Sen. Chris Coons (D-Del.) made an unpopular vote against the 2011 Patriot Act extension, due in part to information he was given in closed-door meetings on the bulk metadata collection program. (At the time, just 34 percent of Americans thought the law went too far and threatened their civil liberties. Today, 54 percent of Americans disapprove of the government’s collection of phone and Internet data.) Coons wasn’t a member of the intelligence committee when he voted against the 2011 extension, but he nevertheless had access to information about secret programs that he couldn’t discuss publicly. “It was hard for me to explain in May of 2011 my vote against the Patriot Act because some of the concerns I had were rooted in classified briefings,” he said.
Snowden changed that.
“Of course Snowden violated his oath and endangered innocent lives of the people who were providing the United States with information. And that is the important starting point,” Durbin explained. “But the fact is, some of his disclosures led to a reassessment of our intelligence operations. So in that respect, if there was anything positive that came of his defection in violation of his oath, it would be a review of what we’ve done in the past.”
Civil liberties advocates who have long argued the necessity, if not legality, of Snowden’s actions are striking a triumphant tone.
“This debate we’re having right now is kind of a vindication of Snowden,” argued Jameel Jaffer, deputy legal director of the ACLU. “And an indication of how dramatically the political landscape has shifted over the last couple of years. We’re now in a very different place than we were two years ago.”
Snowden agrees. “We have for the first time since the 70s [seen] a narrowing of the privileges and authorities the intelligence communities enjoy rather than an expansion of them,” he told the Guardian in a recent interview, calling the action in Congress “fairly extraordinary.”
Although most surveillance reform advocates welcome the USA Freedom Act as a step in the right direction, they point to a range of lesser-discussed laws that threaten privacy. Next on the ACLU’s radar, according to Jaffer, are a Reagan-era executive order and the 2008 amendments to the Foreign Intelligence Surveillance Act -- both of which give the intelligence community broad authority to spy on Americans.
And whether reformers’ current momentum will continue is unclear.
“I’ll be very candid with you,” Durbin said. “Efforts to reign in excessive activity by the government will continue unless or until there is some terrorist incident which strengthens the government’s hand.”
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