Rand Paul, Ron Wyden, and the End of the 9/11 Terror Fog

Is the expiration of Patriot Act provisions"just politics and posturing"? No, it's a sign the country is moving in the right direction.


So provisions in The Patriot Act have expired, including some (such as section 215) that won't be renewed when Congress gets around to passing the reform legislation known as The USA Freedom Act.

This is good news, even if many of the Patriot Act's controversial elements will become authorized under the replacement bill. As Bloomberg View's Eli Lake writes, "The Patriot Act's "lone wolf" and roving wiretap powers will be restored in the USA Freedom Act." In fact, Lake writes off both hysteria and celebration over the Patriot Act's lapsing as "all just politics and posturing." Forget the warnings from the Obama administration and CIA head John Brennan about how letting bulk collection under 215 lapse for even a minute allows terrorists to work "the seams" of security. Lake notes that there all sorts of workarounds that the government is surely using in the interim period. He concludes:

It's clear the proponents of government surveillance are exaggerating [the threat posed by the expiration of certain Patriot Act provisions]. But their opponents are grandstanding as well. Senator Rand Paul, the libertarian Republican running for president, has portrayed himself as a wrestler about to take on Obama and the security state. But even Paul acknowledges that the authorities he allowed to expire will be reauthorized soon enough in the USA Freedom Act. What's more, while Paul has framed his fight as one with Obama, it was Obama that empaneled a Privacy and Civil Liberties Oversight Board that concluded the bulk collection of metadata was unnecessary to stop terrorists….

Bottom line for terrorists: You're still being watched. 

And of course, if terrorists are being watched, so are the rest of us.

Read Lake's cold-water take on the matter here.

Lake's report reminds me of a post last week by security expert Bruce Schneier on "Why the Current Section 215 Reform Debate Doesn't Matter Much." Focusing on a redacted version of a Department of Justice audit of FBI uses of Section 215 orders, Schneier notes (as Lake does) that terrorists have moved on from cell phones in many ways and there's every reason to believe that the feds have followed them into all sorts of other communication methods in the wake of the Snowden revelations. The real question, then, is less the devil we know (bulk collection of phone metadata) and all the other sources that are being combed through, especially via bulk collection. Bulk collection, after all, proceeding from the equivalent of general warrants that scoop up huge amounts of data of individuals who are not suspected of anything, is the issue. Even critics of 215 searches such as Rand Paul have no problem with targeted searches that are vetted through the appropriate legal channels.

Details about legal justifications are all in the report (see here for an important point about minimization), but detailed data on exactly what the FBI is collecting—whether targeted or bulk—is left out. We read that the FBI demanded "customer information" (p. 36), "medical and educational records" (p. 39) "account information and electronic communications transactional records" (p. 41), "information regarding other cyber activity" (p. 42). Some of this was undoubtedly targeted against individuals; some of it was undoubtedly bulk….

What's in there? As [the ACLU's Chris] Soghoian says, certainly other communications systems like prepaid calling cards, Skype, text messaging systems, and e-mails. Search history and browser logs? Financial transactions? The "medical and educational records" mentioned above? Probably all of them—and the data is in the report, redacated (p. 29)—but there's nothing public.

The problem is that those are the pages Congress should be debating, and not the telephony metadata program exposed by Snowden.

Read that here.

So why do I think the expiration of certain Patriot Act provisions is good news, even if it doesn't really hem in various practices that are either more invasive or routed through other portions of the law?

Simply this: The opposition to a clean reauthorization of The Patriot Act—pushed by both Senate Majority Leader Mitch McConnell and President Obama, who had campaigned as a critic of the law—is a clear sign that we are coming out of the 9/11-induced fog that allowed for way too much trust being placed in the hands of the government. We've seen officials in both the Bush and Obama administrations lie to the public about what was going on and we've seen the FBI itself admit that Section 215 has proven incredibly useless in fighting terrorism. The Patriot Act—unread when passed and unclear in its implications—never should have been passed in the first place, any more than the Department of Homeland Security should have been created (exactly how adding new layers of bureaucracy on top of existing ones would improve functioning has never been clear). A government report earlier this year concluded that 

"Based upon the available evidence, DHS is not successfully executing any of its five main missions. Many of DHS's programs, in fact, are ineffective and should be reconsidered."

One key finding states Department of Homeland Security "spent $50 billion over the past eleven years on counterterrorism programs, including homeland security grants and other anti-terror initiatives, but the department cannot demonstrate if the nation is more secure as a result."

As Ohio State's John Mueller has written, laws and practices put into place during national-security emergencies tend to last for decades, even when the threat has receded or been unmasked as mostly illusorty in the first place. In 1972, Mueller and co-author Mark G. Stewart note, "the FBI opened 65,000 new files as part of its costly quest to ferret out Communists in the United States. The pursuit died out only when international Communism collapsed at the end of the Cold War."

In this sense, then, the debate over The Patriot Act, including the reformist USA Freedom Act, shows that the country, including politicians in both major parties, are moving into a new and hopefully more reality-based discussion of countering terrorist threats to America. It may be taking too long for many of us, but compared to other past examples, we're practically moving at warp speed.