This article first appeared online at TheNewAmerican.com on Sunday, May 31, 2015:
On Saturday Senator Rand Paul (R-Ky.) saw his opportunity, and he took it, vowing to use his single vote in the Senate to block a procedural rule that would have expedited passage of the Patriot Act. This was his response to Senate Majority Leader Mitch McConnell’s (also R-Ky.) call for a rare Sunday afternoon session to consider both the Patriot Act (which automatically expires at midnight unless renewed) and the USA Freedom Act (already passed by the House).
It’s only a stalling tactic, but it just might reap a real harvest of change in how, or even whether, the surveillance state continues to record and store the metadata of every telephone call by every citizen in the country, in violation of the U.S. Constitution.
Paul told Politico on Saturday that he will force the expiration of the spying by the National Security Agency (NSA):
I have fought for several years now to end the illegal spying of the NSA on ordinary Americans. The callous use of general warrants and the disregard for the Bill of Rights must end. Forcing us to choose between our rights and our safety is a false choice and we are better than that as a nation and as a people.
That’s why two years ago, I sued the NSA. It’s why I proposed the Fourth Amendment Protection Act. It’s why I have been seeking for months to have a full, open and honest debate on this issue – a debate that never came.
So last week, seeing proponents of this illegal spying rushing toward a deadline to wholesale renew this unconstitutional power, I filibustered the bill. I spoke for over 10 hours to call attention to the vast expansion of the spy state and the corresponding erosion of our liberties.
Then, last week, I further blocked the extension of these powers and the Senate adjourned for recess rather than stay and debate them.
Tomorrow [Sunday, May 31], we will come back with just hours left before the NSA illegal spying powers expire.
Let me be clear: I acknowledge the need for a robust intelligence agency and for a vigilant national security. I believe we must fight terrorism, and I believe we must stand strong against our enemies.
But we do not need to give up who we are to defeat them. In fact, we must not. There has to be another way. We must find it together.
So tomorrow, I will force the expiration of the NSA illegal spy program.
I am ready and willing to start the debate on how we fight terrorism without giving up our liberty.
This puts in a bind the majority leader, Paul’s fellow Republican from Kentucky, who holds a much different view on the dangers of the surveillance state to individual liberties and privacy. If McConnell brings up the renewal of the Patriot Act, Paul will shut it down on the procedural vote. If McConnell brings up the USA Freedom Act, passed last week by the House, he may have to modify it to get it past the Senate. Moreover, any modifications would have to be approved by the House, or the Senate and House versions would have to be reconciled in conference and then approved in both houses of Congress, which observers say will be extremely difficult.
And the clock is ticking. If McConnell is unable to get the Patriot Act extended Sunday, at the stroke of midnight the NSA will be forced to cease (so various commentators are assuring the public) its capturing and storing of Americans’ telephone calls’ metadata altogether. In the interim there will be much backroom conversation, coupled no doubt with political threats, about how to restart the program. But once the odious Section 215 of the Patriot Act has expired, there is very serious doubt that it can be restarted without significant privacy-favoring modifications.
And that’s because the three-judge panel of the Second U.S. Circuit Court of Appeals has ruled three weeks ago that Section 215 has been stretched beyond all recognition by surveillance agencies, overriding and abrogating Fourth Amendment protections of privacy. In their 97-page ruling the judges were outraged at Section 215’s interpretation by those agencies:
The statutes to which the government points have never been interpreted to authorize anything approached the breadth of the sweeping surveillance at issue here. The sheer volume of information sought [by those agencies] is staggering…
Such an expansive concept of “relevance” [in place of “probable cause” demanded by the Fourth Amendment] is unprecedented and unwarranted [and that] government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans…
The text of [Section] 215 cannot bear the weight the government asks us to assign to it, and … does not authorize the telephone metadata problem.
Simply put, the timing and circumstance for Paul and his allies in the Senate couldn’t be better. Once the repugnant Section 215 expires, it is going to be, politically speaking, very difficult for Senators like McConnell to put it back into the genie’s bottle, especially following Paul’s 10-hour filibuster and the ruling by those three judges in New York.
In politics, sometimes the planets align perfectly in the cause of freedom. The coming week may just be one of those times.