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Stalling on Surveillance Reform Could Cost the GOP

Neema Singh Guliani,
Former Senior Legislative Counsel,
American Civil Liberties Union
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November 12, 2014

NSA reform could be the thorn in the side of the Republican Party next year.

Right now, there is a viable, bipartisan bill called the USA Freedom Act that would limit government spying on Americans and has received support from members of both parties, the tech industry, and the Obama Administration. Yet, there are few remaining legislative days left to allow a vote on the bill so that it can become law. Failure to move the bill in the lame duck session will leave some tough questions for the new Senate to deal with in 2015.

Next June, the provisions in the Patriot Act that were abused to spy on every American are set to expire. Before the Snowden revelations, these provisions were overwhelmingly reauthorized three times with little debate.

It likely won’t be so pretty this time around. In fact, things could get downright ugly. A debate on this issue is likely to draw attention to fractures within the Republican Party at a time when they are desperate to show they are unified.

Some hawkish members of the old guard continue to stand by the NSA, even in the wake of continuous revelations that show that government spying has gone too far. For example, Senator Richard Burr (R-Va.), the likely incoming chairman of the Senate Intelligence Committee, has defended the NSA’s controversial call metadata program, despite evidence that the program has not helped to combat terrorism.

Meanwhile, a growing segment of the party continues to see the NSA as antithetical to American liberty and Republican values. Both Senator Ted Cruz (R-Texas) and Senator Rand Paul (R-Ky.), who many believe are contenders for the Republican presidential nomination in 2016, are on the record supporting limitations on the NSA authority. Moreover, at least half of the likely members of the Senate Judiciary Committee, which shares jurisdiction on this issue, support the USA Freedom Act. And, on two occasions, a majority of the Republican House has voted to limit NSA authority in some fashion.

Even the incoming class of Republican senators has varying positions when it comes to NSA reform.

Cory Gardner, the incoming senator from Colorado, has historically supported strong NSA reform and was a co-sponsor of the original USA Freedom Act (which we described as “real spying reform”) when he was in the House. He was also in the camp of co-sponsors who ultimately pulled their support of the final version of the bill that passed the House when it was watered down at the last minute.

Meanwhile, Tom Cotton, the incoming Arkansas senator, has been a staunch supporter of the NSA, and in the past has even gone as far as to urge the prosecution of the New York Times journalists who reported on financial transaction surveillance under the Bush Administration. While Cotton voted in favor of that watered-down House-passed version of the USA Freedom Act, which provided a modicum of reform, he was in the minority of House members who voted against an appropriations measure that would have closed the Section 702 “backdoor search loophole,” and required a warrant before searching for information about Americans.

If Republicans reject the USA Freedom Act, and drag this debate into next year, it won’t be pretty. The early days of the newly Republican-controlled Senate could easily devolve into messy debate over the divisive, party-splitting issue of surveillance. And, as the majority, they will be left with few to blame but themselves.

One way to avoid such a contentious outcome would be to work in a bipartisan fashion to make sure the Senate’s USA Freedom Act gets a vote during the waning days of the 2014 session.

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