May 25, 2015–A few days ago it seemed as if we were finally set to emerge from this wiretapping nightmare. Congress is going on vacation so the spooks have to go home! (Only in America!)
The law containing the provisions under which the National Security Agency (NSA) claims authority to carry out dragnet eavesdropping of citizens is set to expire in six days–on May 31st. Congress had been working on a replacement bill, the so-called “USA Freedom Act,” which contained tighter definitions of what is covered, a more explicit requirement for legal review, a modicum of public representation at the Foreign Intelligence Surveillance Court (FISC), and a clause prohibiting NSA from holding actual custody of the telephony data. The House of Representatives passed that bill but it stalled in the Senate.
In the Senate there was a clash of preferences. That body’s majority leader, Kentucky Republican Mitch McConnell prefers the original, draconian surveillance rules. An unreconstructed Neanderthal, McConnell has apparently drunk the kool-aid and believes the dragnet eavesdropping, which cannot be demonstrated to have had much of an impact at all, is a vital tool for security efforts in the age of terrorism. McConnell would not let the USA Freedom Act come up for a vote. His preferred legislation, with its euphemistic “Section 207,” and “Section 215” alleged “authorities,” then went down in flames. McConnell could not generate the 60-vote supermajority necessary to pass this bill in the U.S. Senate. At that point everyone left for recess (vacation).
It looked like a new age was about to dawn. The old law expires. The new bill, not passed, is not in place. Net result: there is no legal basis whatever for conducting dragnet surveillance. McConnell is said to have demanded senators return early from vacation so they can vote on May 30th. But it is not clear that the task of passing a bill in the Senate, reconciling that with what the House has already passed, and getting the result to President Obama for his signature can be physically accomplished before the deadline for the law’s sunset.
Now enter the spooks. There is a trial balloon in today’s New York Times. The proverbial anonymous source now asserts that the sunset of the law does not matter. The alleged authorities for dragnet eavesdropping were “grandfathered” into law. In this view they cannot be undone! Got that? Behind the scenes at the NSA, intelligence officers were questioning these programs on cost effectiveness grounds because they did not accomplish anything. A firestorm of public criticism followed Edward Snowden’s revelation of the projects. A presidential review group found reasons to question the eavesdropping (though it did not quite bring itself to knock it down), then a government watchdog panel went the whole distance. A federal judge found the law “probably” unconstitutional–and now a circuit court of appeals finds the baseline argument the spooks have been relying upon–that citizens have no interest in the privacy of their business (read phone) records–is without legal basis. The NSA skipped its most recent deadline for filing for the next FISC approval of its dragnet eavesdropping (meaning that its authority for this is rescinded). Now the law actually expires. So all of this happens, we are told, and none of it makes any difference to the spooks’ authority to intrude on everybody? This is zombie law!
More to the point, this is the behavior of a toddler in the terrible twos. Take away her toy and she throws a tantrum. In a democracy, when the security services decide they are above the law they have gone far past the line. Not only is the behavior immature and improper, it violates their very oaths to the Constitution. The time has come to clean house.