On the contentious issue of bulk phone metadata collection by the National Security Agency, the big story is remarkably positive. Two years after Edward Snowden revealed the program and charged that it exceeds the agency’s lawful authority under Section 215 of the USA Patriot Act, a bipartisan solution has emerged. The USA Freedom Act enjoys the support of President Barack Obama and has passed the House with the votes of 338 Democrats and Republicans. Its central provision would allow the bulk collection of phone metadata to continue but assign storage of the records to the private sector, not the NSA, subject to court-ordered searches in specific cases.
This doesn’t go far enough for opponents of any bulk collection, such as Sen. Rand Paul, R-Kentucky. But the tepid response from the public and his Senate colleagues to his multi-hour verbal assault on the compromise shows that Paul speaks for only a minority, and a small one at that.
Still, the compromise goes too far for Senate Majority Leader Mitch McConnell, R-Kentucky, and others who think the NSA program should continue as-is. McConnell has been pushing to reauthorize Section 215 of the Patriot Act unchanged, on the grounds that it remains good authority for the NSA program — the alteration of which he still sees as inconsistent with effective anti-terror operations.
Which brings us to the not-so-positive part of the story. McConnell persisted in his view even though more than 50 senators of both parties support the USA Freedom Act — and despite doubts about his interpretation of Section 215, which has been endorsed only by one secret judicial tribunal, the Foreign Intelligence Surveillance Court. Indeed, two weeks ago, a three-judge federal appeals court in New York unanimously ruled that the NSA program is not a lawful application of Section 215. With both Paul and McConnell resisting the USA Freedom Act, no bill — not even a short-term extension of the current program — passed, and the Senate went on vacation until May 31. Alas, at midnight of that day, Section 215 expires.
The least circuitous, and most advantageous, course — for national security and civil liberties — would have been a Senate vote to pass the House version of the USA Freedom Act without further ado. Instead, Congress is on course to create a vacuum of authority, in which the NSA would have no clear power to conduct any metadata collection, possibly indefinitely. Negotiators are said to be working on a deal that would tweak the legislation enough to placate McConnell (or allow him to save face) without alienating the House. One possible solution would be to extend slightly the House bill’s six-month transition period.
Whatever solution lawmakers embrace, it must preserve the painstakingly negotiated compromise embodied in the USA Freedom Act. And the burden is properly on McConnell to rein in Paul and get an acceptable bill to the president’s desk quickly, with as little additional drama as possible. Having used his considerable powers to help create this predicament, the Senate majority leader needs to use them to resolve it.
The above editorial appeared in Wednesday’s Washington Post.
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