Several controversial provisions of the Patriot Act are set to expire Sunday: The Obama administration insists that letting the law lapse would harm US security, while critics counter that it would be a big step in ending NSA abuses as exposed by Snowden.
Should it stay, or should it go?
The “Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism” (USA PATRIOT)
Act was adopted in October 2001, six weeks after the 9/11 terror
attacks. Its most recent extension was in 2011.
Several provisions of the Patriot Act are expiring –
“sunsetting,” in government parlance – on May 31. Among
them is the notorious Section 215, authorizing bulk collection of
Americans’ data, which a federal court ruled illegal earlier this month. According
to government officials, it has been used almost 200 times per
year.
Other provisions set to expire June 1 enable the government to
conduct “roving wiretaps” of suspects who switch phones,
or spy on “lone wolf” individuals who are not affiliated
with an international terrorism organization. FBI director James
Comey has called those tools “essential,” while Attorney
General Loretta Lynch argued they were “vital and
uncontroversial” tools used to “combat terrorism and
crime.”
Compromise Possible?
On Friday, President Obama demanded that the Senate to approve a
House-backed law that would extend the expiring provisions of the
Patriot Act and redefine the bulk collection of data.
“The only thing that is standing in the way is a handful of
senators who are resisting these reforms,” he told reporters
in the Oval Office, after a meeting with Attorney General Lynch.
“I don’t want us to be in a situation in which for a certain
period of time those authorities go away and suddenly we are
dark,” Obama said. “And heaven forbid we’ve got a
problem where we could have prevented a terrorist attack or
apprehended someone who is engaged in dangerous activity but we
didn’t do so simply because of inaction in the Senate.”
Obviously #IfThePatriotActExpires
cc @ggreenwaldpic.twitter.com/3iQjybbPjQ
— Mohammed Bushra (@interjectionist)
May 28, 2015
He was referring to HR 2048, also known as the USA Freedom Act,
passed by the House in a 338-88 vote on May 13. It
would do away with Section 215 programs over six months, but give
phone companies the responsibility of maintaining phone records
that the government could search. The legislation also includes
provisions for “roving wiretaps” and “lone
wolf” surveillance demanded by the FBI and the DOJ.
Critics blasted the Freedom Act as an inadequate check on
government’s mass collection of Americans’ data. Representative
Justin Amash (R-Mich.) described it as a “step in the wrong
direction by specifically authorizing such collection in
violation of the Fourth Amendment.”
Brave New World without Section 215
Senator Rand Paul (R-KY), an outspoken opponent of NSA’s bulk
spying programs, said that President Obama could end the
illegal surveillance with an executive order, if he wanted.
“Why doesn’t he stop it? What’s he waiting for? He started it
on his own, he should stop it…I’ve asked the president repeatedly
to stop the program,” Paul told CBS’ This Morning. As for
the data collected by the NSA under Section 215, “I think the
information was collected illegally and should be purged,”
Paul told Fox & Friends.
In a 10-hour filibuster on May 20, Paul effectively ensured the
House would go into recess before the Senate could debate USA
Freedom Act. The Senate subsequently rejected both the Freedom Act and Senate
Majority Leader Mitch McConnell’s attempt to pass a two-month
extension of the Patriot Act.
“The sunset of Section 215 would undoubtedly be a significant
political loss for the intelligence community, and it would be a
sensible first step towards broader reform of the surveillance
laws,” wrote Jameel Jaffer, Deputy Legal Director at
the American Civil Liberties Union, “but there’s no support
for the argument that the sunset of Section 215 would compromise
national security.”
Scary New World without Section 215
That has not stopped government officials from painting an
apocalyptic picture of what would happen if a few Patriot Act
provisions were allowed to “sunset” this weekend.
Reporters summoned to the White House were told by three senior
Obama Administration officials – on condition of anonymity – that
doing nothing amounted to “playing national security Russian
roulette,” reported The Hill.
Anonymous fearmongering as key Patriot Act provisions set to
expire http://t.co/j7ydETxj3p by @ggreenwald pic.twitter.com/AManMFYe21
— The Intercept (@the_intercept) May
29, 2015
Glenn Greenwald, the journalist who has helped publish Snowden’s
revelations since 2013, blasted the press for being mere
stenographers to anonymous White House officials.
“It’s just government propaganda masquerading as a news
article, where anonymous officials warn the country that they
will die if the Patriot Act isn’t renewed immediately, while
decreeing that Congressional critics of the law will have blood
on their hands due to their refusal to obey,” Greenwald
wrote in The Intercept. “In other words,
it’s a perfect museum exhibit for how government officials in
both parties and American media outlets have collaborated for 15
years to enact one radical measure after the next and destroy any
chance for rational discourse about it.”
By Friday, however, the New York Times was backing the expiration of Section 215 and
other Patriot Act provisions. The editorial board even praised –
after a fashion – Edward Snowden, calling him a
“whistleblower” and saying his revelations “prompted
the Obama administration to start a review of intelligence
gathering techniques and vow to reform the program. They also led
lawmakers, for the first time, to have a meaningful exchange of
views about domestic surveillance.”
“There is no question that the federal government should have
broad authority to investigate terrorism threats and suspected
spies operating in the United States,” the NY Times editors
wrote, “but not at the expense of meaningful judicial
review.”
How to shut down massive surveillance
According to a senior official who spoke with reporters at the
White House, the NSA has a team on “hot standby”,
preparing to begin shutting down its spy servers at 4 PM on
Sunday. “Rebooting would take about a day, the official said,
and would entail going back to the telecommunications providers
and obtaining a court order,” reported the New York Times.
About that time, the Senate will be holding an extraordinary
session called by Majority Leader McConnell. Roll call votes may
start by 6 PM. In case the Senate passes the USA Freedom Act, or
even McConnell’s proposed outright extension of the existing
Patriot Act, the NSA could “resume operations without
disruption,” according to The Hill.
What Happens #IfThePatriotActExpires?
ISIS, Hellfire, Doom! – http://t.co/Gl7q0Ph4MG pic.twitter.com/7zxVLhwgzr
— PushBack.US (@PushBack_US) May
29, 2015
“We’re in uncharted waters,” said one senior official.
“We have not had to confront addressing the terrorist threat
without these authorities, and it’s going to be fraught with
unnecessary risk.”
It’s about more than just the PATRIOT Act
Jennifer Granick, Director of Civil Liberties at the Stanford
Center for Internet and Society, argued not just for letting
Section 215 expire, but for abandoning attempts to pass the USA
Freedom Act.
If the House reform passes, Granick wrote in Forbes, “it’ll be suspicionless
spying as usual until the next big surveillance provision,
section 702 of the FISA Amendments Act sunsets at the end of
2017.”
The bill was put together before a federal court ruled Section
215 unconstitutional, she said, and before a report by the
Justice Department’s Inspector General said the FBI was
“unable to identify any major case developments that resulted
from use of the records obtained through use of Section 215
orders.”
These naked protesters are trying to black out Congress’
Internet to protest #NSA spying
http://t.co/0IsBLNsjSrpic.twitter.com/dANRXclMNG
— Fight for the Future (@fightfortheftr) May
29, 2015
Julian Sanchez, a Senior Fellow at the Cato Institute, said that
letting Section 215 expire would “provide the illusion of
triumph even while leaving much of the machinery of surveillance
intact.”
Writing with Vice’s Motherboard blog, Sanchez argued for passing the USA Freedom Act as a
step towards reforming the spying programs, noting that the vast
majority of the Patriot Act was permanent, with vague and
overlapping authorities that could let the government continue to
spy pretty much at will.
For instance, if the FBI wanted to obtain phone, email, internet
and financial records, it could just issue itself National
Security Letters again, without seeking judicial approval.
Massive surveillance inside the US under Section 702 of the FISA
Amendments Act, or the foreign surveillance under Reagan’s
Executive Order 12333, would remain untouched as well, Sanchez
noted.
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