How Rand Paul Hijacked Surveillance Reform

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This post is the latest installment of our “Monday Reflections” feature, in which a different Just Security editor examines the big stories from the previous week or looks ahead to key developments on the horizon.

The more nuanced headlines this morning correctly highlight the real news from last night’s Senate maneuverings–not that three provisions of the USA PATRIOT Act temporarily expired at midnight, but that the Senate (easily) cleared a procedural hurdle to considering the USA FREEDOM Act, which the House passed, 338-88, on May 13. As a result, it now seems likely that, perhaps as early as Wednesday, the Senate will pass the House bill (although it remains to be seen whether there will be any amendments that would then require the chambers to conference). And it seems equally clear that the junior Senator from Kentucky played an out-sized role in effectuating this too-strange-for-fiction result, which is already being portrayed in a wide range of circles as a watershed moment in the debate over surveillance reform that Edward Snowden kicked off two years ago this week.

I, though, come to bury Caesar, not to praise him. As I explain in the post that follows, Senator Paul’s focus on the substantive validity and wisdom of the phone records program has obscured two larger problems with the USA FREEDOM Act: (1) that it says nothing at all about the government’s other controversial surveillance authorities, especially those carried out pursuant to Executive Order 12,333 and the FISA Amendments Act of 2008; and (2) that its procedural reforms, especially with respect to judicial review by the FISA Court, are laughably modest. These shortcomings could easily be dismissed if it was clear that Congress means to address them in subsequent legislation. But by all accounts, section 215 is–and has been–the ballgame. Thus, Senator Paul’s grandstanding on the call records program may well come to epitomize what I’ve elsewhere described as “libertarian hijacking,” “wherein libertarians form a short-term coalition with progressive Democrats on national security issues, only to pack up and basically go home once they have extracted concessions that don’t actually resolve the real issues.” Even worse, as I’ve explained, “such efforts . . . consume most (if not all) of the available oxygen and political capital, obfuscating, if not downright suppressing, the far more problematic elements of the relevant national security policy.” So too, here.

I.  The Section 215 Tree in the Surveillance Reform Forest

For three different reasons, section 215 was always going to be the first flashpoint for surveillance reform. Not only did it have the earliest congressional deadline (today), but the phone records program was also more publicly controversial and more quickly (and effectively) challenged in the courts. The problem with the debate that section 215’s expiration has provoked is that it has taken place almost entirely without regard to the other controversial surveillance programs disclosed by Edward Snowden, including the PRISM and “upstream” programs carried out under the 2008 FISA Amendments Act, and the interception of U.S. persons’ communications under Executive Order 12,333 about which State Department whistleblower John Napier Tye raised concerns last summer.

Thus, as I argue in a piece published in Foreign Policy this morning,

This should have been a conversation not just about the full range of government surveillance powers, including Executive Order 12,333 and the 2008 FISA Amendments Act, but also about the role of the FISA Court and of congressional oversight in supervising those authorities. Instead, it devolved into an over-heated debate over an over-emphasized program. Congress treated a paper cut while it ignored the internal bleeding. Not only does the expiration of section 215 have no effect on the substance of other surveillance authorities; it also has no effect on their oversight and accountability.

To be sure, there are plenty of folks both inside and outside the Beltway who understand this point, and who see 215 reform as the first piece of a much larger puzzle. But I have virtually no faith that Senator Paul is one of them. And so, just like the other examples of “libertarian hijacking” I’ve written about in the past, it now seems likely that the modest accomplishment that is the USA FREEDOM Act is not going to be the beginning of the story, but the end.

II.  The Weaknesses of the USA FREEDOM Act

The likelihood that the USA FREEDOM Act is going to be the last meaningful thing this Congress does on surveillance reform also puts into far sharper focus the weaknesses of that bill. Others have focused on the substantive shortcomings of the bill, but I think the far larger problem is the “special advocate” provision, which, compared to earlier proposals, have been watered down to a fare-thee-well. Now, instead of guaranteeing the presence of an outside lawyer to argue against the government whenever the government seeks new authority, or a new interpretation of an existing authority, the matter is committed to the discretion of the FISA Court, which can decline to appoint such an “amicus” at its own discretion. Just to cut to the chase, this is merely codifying the status quo–where FISA Court judges were already perfectly within their rights to appoint amici when appropriate, and to not do so when not. All the bill really does is add some (secret) paperwork.

Why is a meaningful outside advocate so important? Consider what Judge Sack had to say in his opinion concurring in the Second Circuit’s invalidation of the call records program on the ground that it had not actually been authorized by Congress in section 215:

the participation of an adversary to the government at some point in the FISC’s proceedings could . . . provide a significant benefit to that court. The FISC otherwise may be subject to the understandable suspicion that, hearing only from the government, it is likely to be strongly inclined to rule for the government. And at least in some cases it may be that its decision-making would be improved by the presence of counsel opposing the government’s assertions before the court.

By not actually providing for meaningful adversarial participation before the FISA Court, the USA FREEDOM Act does nothing to prevent what happened with section 215 from recurring–where a secret, strained interpretation of substantive surveillance authorities is approved in secret by a court operating ex parte. Thus, whereas it’s troubling enough that the USA FREEDOM Act says nothing about the government’s other surveillance authorities, it’s perhaps all the more galling that it does so little to provide for meaningful oversight and accountability of the specific authority it provides.

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This is not to say that the USA FREEDOM Act isn’t an important (and largely salutary) step forward; it is. But it is only a step. And if it’s the only one Congress takes between now and December 2017 (when the relevant provisions of the FISA Amendments Act expire), we’ll have plenty of people to thank, beginning with Senator Paul.