After the last election, there was a theory that under unified Republican control, Congress would finally stop tying itself in partisan knots and do something about critical national problems. No such luck.
The paralysis has continued on sequestration, highway funding, war powers, immigration — and now threatens the government’s ability to track suspected terrorists and spies.
We’re not just talking about the National Security Agency’s bulk collection of metadata, which alarmed many Americans when Edward Snowden started dumping his own bulk collections of CIA secrets onto the Internet in 2013. The NSA’s authority to conduct that level of surveillance expires at midnight Sunday and almost certainly won’t be renewed.
But something’s got to replace it, unless you believe (like Sen. Rand Paul, apparently) that the U.S. government doesn’t belong in the counterintelligence business.
The only replacement in sight at this point is the USA Freedom Act, which the Republican-led House approved two weeks ago with an overwhelming 338-88 bipartisan vote. But despite the Sunday deadline, it has so far failed to clear the Senate.
The existing practice of metadata collection has been described as eavesdropping. It isn’t. Under the program, the agency maintains an immense database of raw information on Americans’ phone calls: When they occurred, how long they lasted, and which numbers called which numbers. The conversations themselves aren’t monitored or recorded.
Analysts search the database for connections to the phone numbers of known terrorists operating outside the United States. Controversial as the program is, there have been no significant documented abuses against innocent people — no one targeted for political reasons, no one wrongly thrown into prison.
At the same time, intelligence officials have had a hard time producing instances where it has foiled actual terrorist plots. One of the program’s weaknesses as a counterintelligence tool is that it tracks only landline phones, which are going the way of the eight-track tape.
Under the USA Freedom Act, the NSA would no longer store the call data. Instead, it would have the country’s major phone companies run searches in their records on a case-by-case basis. That addresses reasonable concerns about the agency’s possession of a continent-spanning database of individual calls.
The bill would also renew congressional authority for two critical anti-terror tools: The ability to track suspected “lone wolf” terrorists who aren’t being operated by international terror organizations, and the authority to seek warrants for “roving wiretaps” on suspects who frequently buy and discard cheap cellphones to evade surveillance.
Despite the broad House support for the new bill, it’s been stalled in the Senate by two factions. One group, led by Majority Leader Mitch McConnell, wants to maintain the existing NSA program. Another, of whom Paul is the most flamboyant member, wants no NSA surveillance at all.
In a straight majority vote, the bill would easily win, but its sponsors haven’t been able to get the 60-vote supermajority required under the Senate’s filibuster rule.
To put this in perspective, the USA Freedom Act was first introduced in late 2013. Lawmakers have known for years that the NSA’s authority to track terror-related domestic calls would expire May 31.
The Senate will presumably do that right thing after it has exhausted all other options. But the fact that a problem of such magnitude has been allowed to fester for so long is baffling.