At the end of this month, three provisions of the Patriot Act will expire, only one of which has occasioned significant debate. Those claiming that this law or the policies of the Bush years in general were a hysterical overreaction would do well to note that most of the powers granted by it have been not only effective, but also uncontroversial.
Even the main proposal set forth to modify the controversial provision is relatively modest. That is not to say, however, that it is wise. The bill that the House passed last week, the USA Freedom Act, would do little to protect Americans’ privacy while hampering the work of our intelligence agencies.
In fact, while this bill would not reduce our ability to track terrorists to where it stood before September 11, it would still move us a good distance back. Senate majority leader Mitch McConnell has said he will allow a vote on the bill in the Senate this week, and it deserves to fail.
The House bill’s main aim is to replace the National Security Agency’s metadata program, one of the many operations Edward Snowden exposed, which allows the NSA to gather and analyze not the content of phone calls but the numbers involved, their locations, and their duration. The USA Freedom Act’s replacement program would leave this data with telephone companies, and allow the NSA to collect it (from each company) only when it brings a specific request, for a specific investigation, to a surveillance-court judge. The NSA could then begin collecting some relevant data, but not nearly as much as it could in the past, for the next 90 days. It would be able to analyze past data closely related to the investigation, too, but of course could use only whatever data the phone companies had kept on their own.
Before the Patriot Act, investigators could make requests like this to judges, too, just with more effort required and restrictions imposed. The provision that has been used to authorize the metadata program, Section 215, gave intelligence agencies new and useful powers that the House’s so-called reform will seriously diminish. The NSA’s program allows it to search through large amounts of data for patterns and connections like the ones that might have turned up before 9/11, when the hijackers were a couple of degrees removed from known terror suspects. The gathering of bulk metadata also allows intelligence analysts to track the organization and funding of terror networks in a way that would be much more tedious, if not outright impossible, under the USA Freedom Act. The president has made only a half-hearted case for these powers, but given their obvious utility and vanishingly small effect on privacy, Congress ought to renew them.
It bears mentioning that the intelligence community has assented to replacing Section 215 with a program like that in the USA Freedom Act, modeled on one drawn up by the presidential commission that reviewed intelligence practices after the Edward Snowden leaks. But that doesn’t mean it’s the best choice. The hysterical and confused reaction to the Snowden revelations is no place to start policymaking, and the intelligence community has been left vulnerable by the president’s pusillanimity and general ambivalence toward American strength. Republicans should be defending the prerogatives of the intelligence community, not piling on an unwise crusade.
The hysterical and confused reaction to the Snowden revelations is no place to start policymaking.
One wrinkle: A federal appellate court has ruled that the wording of Section 215 does not authorize how the NSA has used the metadata program, arguing that the agency gathers large amounts of data not “relevant” to a specific investigation, as the statute requires. Although the program was subject to congressional oversight, executive oversight, and the judgment of the Foreign Intelligence Surveillance Court, this complaint should not be dismissed entirely. Congress should make clear that it is authorizing the metadata program as it functions today, which has helped uncover dozens of terror operations. (There are also some useful enhancements of national-security powers in the House bill that can and ought to be added to a Patriot Act reauthorization.)
Republicans should be offering a full-throated case for a long-term renewal of the Patriot Act with those modifications. The Senate is unlikely to have time before the end of the month to consider such a long-term reauthorization, so for now, a short-term deal makes sense, and the USA Freedom Act ought to be rejected.
Some GOP legislators are getting this issue quite wrong — suggesting, for instance, that the metadata program is actually unconstitutional. Information like metadata (“outside the envelope” information, to our forebears) has never been protected by the Fourth Amendment. How the government handles such data is a prudential question, demanding a weighing of our priorities. Our government’s most important duty is protecting innocent American lives, and it has done a fine job of that since September 11. With terror rising, not receding, around the globe, it is not time to start taking away the tools the intelligence community needs to keep up the good work.