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May 21, 2015

Making Hay Out of the Haystack

Nothing says national security matters like waiting till the last minute.

The House and Senate are engaged in some last-minute gamesmanship on the Patriot Act and the USA Freedom Act, a modest revision of the former. The Patriot Act expires June 1, and Congress is about to leave town for its Memorial Day recess. Most of the political moves are Republican against Republican — House Speaker John Boehner against Senate Majority Leader Mitch McConnell.

Under the USA Freedom Act, The Daily Signal reports, “the National Security Agency’s (NSA) bulk data collection program would be terminated, and phone companies would be responsible for retaining customer data. With court approval, government officials could then request some of that data for its terrorist investigations.”

The bill passed the House 338-88 last Wednesday. A week before that, the Second Circuit Court of Appeals ruled the NSA’s mass metadata collection program exceeded the authority granted it by Section 215 of the Patriot Act, but left it to Congress to sort out a fix. So the House passed a bill explicitly ending what the court struck down. The NSA and Justice Department say they’ll begin winding down the collection this Friday.

And yet many Senate Republicans, led by Mitch McConnell, want the program to continue. McConnell wants a temporary extension of the Patriot Act to give the Senate time to consider the issue further.

“I don’t want us to go dark, in effect,” McConnell said, “and I’m afraid that the House-passed bill will basically be the end of the program and we will not able to have yet another tool that we need to combat this terrorist threat from overseas.” He and others continue to argue the NSA needs all the hay in order to find the needles.

Presidential candidates Marco Rubio and Lindsey Graham stand with McConnell.

Other Republicans refuse to consider a temporary extension, saying it would essentially authorize — even if only for a short time — a program Congress never intended in the first place. Ted Cruz and Rand Paul are in this camp.

Paul took the Senate floor to rail against the Patriot Act for more than 10 hours Wednesday (technically, it wasn’t a filibuster). “Congress must repeal the Patriot Act’s Section 215 provision that is used as the justification for the [data collection] program’s legality,” Paul said. “Without congressional authorization for the program’s expiration at the end of the month, the government’s warrantless collection, as the court puts it, was never legal.”

But Paul is among those who doubt whether the USA Freedom Act is the answer. “By trying to reform this, we will actually be granting new power to Section 215 that the court says is not there,” he said.

Likewise, Rep. Raúl Labrador (R-ID) explained, “I voted against the Freedom Act not because it was too strong, but because it wasn’t strong enough. It didn’t protect the Fourth Amendment like it should.”

Proponents of the NSA’s metadata collection dismiss Fourth Amendment concerns, saying there has not yet been any instance of abuse or undue violation of privacy. But neither can they point to a case in which the needle found in the haystack proved critical to catching a terrorist or thwarting an attack. Tools are necessary to fight terrorism, but is every phone record from every American really the answer?

The issue before Congress boils down to this: An overwhelming House majority has passed a bill seeking to address the NSA’s overreach in line with a court ruling. It’s an imperfect solution. But, pending what happens in Saturday’s votes on both the Patriot Act and the USA Freedom Act, the Senate is poised to let the whole Patriot Act apparatus expire — the good with the bad — because the leadership of both chambers waited until the last minute to sort things out. What does that say about how they view the balance between national security and Liberty?

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