Any chance of meaningful reform in the way government agencies go about surveillance died in the Senate for the time being and maybe the foreseeable future. By a vote of 58-42 the measure missed passage, which would have allowed debate on modifications. It was largely supported by Democrats going against the administration tide of the past six years. Sixty votes were needed for passage.
The fact that it failed to pass while the Democrats still control the chamber doesn’t augur well for passage when the new congress, controlled by Republicans, convenes in January. The House had earlier in the year passed a watered down version of the measure, hence a 6 month campaign aimed insuring privacy has ended in failure.
At the end of the day, the tried and true claim by those opposing the bill was that curbing the spy agencies’ controversial activities would weaken national security. The bill, dubbed the USA Freedom Act, would have ended the government’s invasive bulk collection of phone records from US telecom companies. The bill would have allowed companies to keep the records and force the NSA to obtain warrants from the Fisa court to gain access to them. Law enforcement would also have to be more targeted in their requests for information if the bill passed.
“If our aim is to degrade and destroy ISIL, as the president has said, then that’s going to require smart policies and firm determination. At a minimum, we shouldn’t be doing anything to make the situation worse,” pronounced Senate Republican Leader- destined to be new Majority Leader Mitch McConnell. The NSA has admitted that it doesn’t know how many Americans are caught up in the dragnet to snag foreign suspects.
The bill enjoyed bi-partisan support, a rarity for this congress, despite comments by former NSA and CIA chief Michael Hayden and former Attorney General Michael Mukasey, who called it the kind of “NSA reform that ISIS could love,” and it marked a defeat for the White House which characterized the bill as balanced. It is certain to be the first in a string of defeats for the Obama administration as it faces the prospect of its last two years with Republicans controlling both houses.
All is not lost for privacy advocates, as bulk-records collection could end with expiration of Section 215 of the USA Patriot Act next summer, which would deal a harsher, more permanent blow to bulk-record collection than this bill. It is just that this measure would have curtailed the information gathering sooner, and was more likely to prevail given the present makeup of the Senate.
The conundrum is best illustrated in the posturing of California senator Diane Feinstein (D) who supports the bulk collection program, but she supported the bill in hopes that its passage would inhibit the cancelling of the program via expiration come summer. She viewed the USA Freedom Act as a compromise. “I don’t want to end the program,” she recently told colleagues. “I’m prepared to make the compromise, which is that the metadata will be kept by the telecoms.”
Alas, her words fell on deaf ears and the hardliners prevailed for now. The hopes of privacy advocates must be deferred to the summer, and the prospect of seeing the practice expire then.