This article first appeared at The McAlvany Intelligence Advisor on Friday, May 15, 2015:
Passage of The Freedom Act in the House on Wednesday, May 13, 338-88, was for show only. The bill with real teeth that would have done something substantial about rolling back the surveillance state is collecting dust in Speaker John Boehner’s inbox.
Freedom Act 2.0 is even weaker than the one the House passed last year, which the Senate essentially ignored until it was too close to the midterms for it to vote on. It does not, as sponsor Rep. James Sensenbrenner hoped it would, end the surveillance state, nor even slow it down. It merely shifts the collection center from Utah to the phone companies. Under the bill, all that the NSA or the FBI need to do is go through the faux formalities of requesting approval from the secret FISA court, which it always grants, using a much lower standard than the founders thought necessary to protect Americans’ freedoms from illegal searches and seizures.
Under the Fourth Amendment, the bar is high: warrants are only issued upon “probable cause” and the specific items sought must be spelled out. Under the Freedom Act, the standard is only “reasonable articulable suspicion.” There’s further tinkering including creating an independent body of some kind to monitor the FISA court, and allowing companies that receive demands for their customer information by government agencies to announce publicly that they have received those demands.
Senate Majority Leader Mitch McConnell was quick to say that he wasn’t interested in bringing the bill to the floor for a vote as it was too restrictive and a danger to the safety of Americans. He said “it will neither keep us safe nor protect our privacy” and that it would “tie the hands” of those agencies tasked with protecting the nation from terrorist attacks.
His political strategy is clear and probably sound: he won’t bring the bill to the floor until after the Memorial Day break, ever closer to June 1 when the offensive Section 215 of the Patriot Act expires automatically. Then he and his surveillance state coterie will remind Americans that those radical conservatives in the House are putting the entire nation in jeopardy and that the Senate will only consider a bill much milder and more acceptable to the surveillance staters who now control the Senate.
Three former NSA employees – now whistleblowers – have seen through the sham and the fraud. William Binney, a former NSA crypto-mathematician who worked for the agency for three decades, declared that the bill “won’t do anything” to reduce the surveillance of innocent American citizens, adding “Why do you think NSA [and other intelligence agencies] support it?”
Thomas Drake, who left the agency in 2001 after serving as a senior executive there, called the bill “Free-dumb Act 2.0” and a ploy to “keep the status quo in place.”
It’s also a ploy to emasculate three current lawsuits against the NSA. If passed, the bill will allow defendants to claim that Congress has already spoken on the issue and so the Supreme Court (where at least one of those lawsuits is headed) won’t have to.
The whistleblowers know two things: the bill just passed will have no impact on the surveillance state’s hoovering of personal data from private citizens, and the amount of data being hoovered is vastly greater than just the metadata collected from phone calls. Drake explained: “There’s a whole lot more [information] being collected [than just the metadata] including a ‘staggering’ amount of American communications.”
The bill with any teeth, residing in Boehner’s inbox, is the Surveillance State Repeal Act. It would repeal the Patriot Act in its entirety, including supplements, as well as Executive Order 12333, which agencies have used for years as justification for violating privacy in the (so claimed) interest of security. It would rely on the previous laws and improved communications between agencies to protect Americans from terrorists. But, according to every source in the propaganda ministry, the bill has “no chance,” and so all eyes are on the phony one taking its place.
The Freedom Act 2.0 is serving as a distraction from the real work that needs to be done if Fourth Amendment guarantees are to be preserved from the surveillance statists like McConnell and his cronies. They know that the surveillance state has done precious little to thwart terrorist attacks, but has done wonders for the growth and invasiveness of government into the private lives of innocent American citizens.
As Ron Paul explained, even if the Freedom Act were signed into law, it would still be unconstitutional:
Illegality and unconstitutionality are really two very different things. Even if Congress explicitly authorized the government to collect our phone records, that law would still be unconstitutional because the Constitution does not grant government the power to access our personal information without a valid search warrant.
This is the real travesty of the show going on in Washington over security and privacy. The Freedom Act 2.0 is just part of the show.
Wall Street Journal: U.S. House Approves Bill to Curb NSA Powers
New York Times: House Votes to End N.S.A.’s Bulk Phone Data Collection
US News: NSA Whistleblowers Oppose Freedom Act, Endorse Long-Shot Bill
New York Times: More Excuses on the Patriot Act
The New American: Forty-two Senators Block USA Freedom Act to Limit NSA Surveillance
The New American: USA Freedom Act to End NSA Records Collection Clears Committee
The New American: USA FREEDOM Act: Just Another Word for Lost Liberty
Ron Paul: NSA Spying Ruled Illegal, But Will Congress Save the Program Anyway?
The New American: House Members Target Patriot Act with “Surveillance State Repeal Act”