White House backs NSA reform, McConnell still resists

by Joan McCarter

The White House is urging Congress to pass the USA Freedom Act, the NSA reform bill the House is expected to vote on this week. The bill would replace three expiring provisions of the PATRIOT Act, including Section 215, the provision that this current and previous administrations have been using to amass the phone records of pretty much all of us. This legislation curtails that bulk collection, but it doesn't necessarily end it. It puts more control on it. The continued, although limited, existence of the program is not good enough for Senate Majority Leader Mitch McConnell. He's still insisting on a "clean" reauthorization of the PATRIOT Act. With the White House now supporting the House bill, there's really no way McConnell is going to get his way in the end, even if he can somehow manage to cobble together a filibuster-proof majority of senators on his side. That's exceedingly doubtful, as is the possibility that the House would even consider passing a "clean" bill. McConnell's ploy has been to run the clock out on this expiring provision—it ends at the end of the month. By putting it off until the last minute, he's apparently counting on panic setting in and Congress doing the easiest thing in the name of national security—extending the program. As of now, he's still pushing for an extension until 2021. Which is an impossible thing.
First of all, a federal appeals court has declared the bulk collection of phone data under Section 215 illegal—the law does not allow for the program that McConnell insists must continue to exist. If the law is unchanged, the administration will be forced to either end the program itself or appeal the ruling of this court to the Supreme Court. Since the White House is behind the reform language, the likelihood of it appealing to the Supreme Court is tiny. If the government doesn't stop the surveillance, the federal appeals court can intervene with an injunction and tell it to stop. It didn't enjoin the program with this ruling specifically because the program is slated to be dealt with this month by Congress, but if Congress doesn't act the court will. Given it's current shaky legal status, it's likely that telecommunications companies will stop participating. McConnell is on a fool's mission if what he wants to do is keep the NSA unfettered in collection of our phone records. There's almost no path to continuing the program unchanged.
But McConnell could be doing us all a big favor. The best solution for this program which even intelligence officials say has very limited value is for it to end. Entirely. For Section 215 to sunset as the original authors of the PATRIOT Act intended it to. Maybe McConnell wastes enough time in his fight that the deadline comes and goes with Congress deadlocked and it just expires.
This turmoil in the Senate, however, gives truly reform-minded members of Congress their chance to push for the best outcome—the expiration of Section 215. You can give them a push by sending this letter telling them to let it and the other PATRIOT Act provisions expire.