Last night, in a special Sunday session, pro-surveillance hawks caved.
Up against a midnight deadline, pro-reform members of Congress again refused to reauthorize provisions of the Patriot Act set to expire. The result: sunset. Or, at least, temporary sunset.
However brief the expiration of Section 215 — and the mass phone surveillance program it authorized — ends up being, one thing is clear. For the first time in 14 years, the NSA isn’t using Section 215 of the Patriot Act to track the calls of hundreds of millions of innocent Americans.
Instead of reauthorization, over 70 members voted to move forward on the USA Freedom Act — a modest reform bill that the ACLU believes should be strengthened.
Though the USA Freedom Act is far from ideal, the vote last night was a clear sign that the tides have turned. Instead of the post-9/11 panic that shepherded in the Patriot Act, Congress and the public appear ready to return to an era of restrained government surveillance where privacy and national security coexist.
To put this in historical context: When was the last time that Congress constrained – rather than expanded – intelligence authorities?
But, the debate is far from over. Though the Senate overwhelmingly voted to move the bill forward, there is still the opportunity to amend the bill before passage.
In a last ditch attempt to subvert the will of two-thirds of the American public, Sen. Mitch McConnell (R-Ky.) is now pushing various proposals to weaken the USA Freedom Act.
He has filed amendments that would gut transparency provisions requiring disclosure of opinions handed down by the Foreign Intelligence Surveillance Act Court, which are necessary for Congress and the public to ensure that the bill has been faithfully implemented. He has also put forward proposals that would delay the effective date of provisions of the bill for an additional six months without any evidence for why that’s necessary, weaken provisions that permit an amicus in the secret intelligence courts by making it more difficult to meaningfully participate in proceedings and advance privacy arguments, require phone companies to notify the government whenever they decided to retain data for less than 18 months, and require wholly unnecessary certifications from the Director of National Intelligence. (ACLU vote recommendations urging members to oppose these amendments can be found here.)
Senator McConnell has also blocked consideration of any positive amendments.
If the Senate passes the USA Freedom Act unchanged, it will become law once signed by the president. But if Sen. McConnell successfully waters down the bill, the changes will need to be approved by the House.
Then, members of the House will have a tough choice to make: Do they cave to Senator McConnell and cede a modest step forward, or do they stand strong and refuse to compromise even further?
While sunset remains the best option, the answer is clear.