The Senate Must Pass the USA Freedom Act | Commentary

Posted May 15, 2015 at 12:17pm

The 2nd Circuit Court of Appeals, in an extraordinarily well-reasoned decision, ruled that the National Security Agency’s program of systematically collecting the telephone records of Americans is not authorized by Section 215 of the Patriot Act and is, therefore, illegal.

The House recently, by a bipartisan vote of 338-88, amended Section 215 to meet the 2nd Circuit’s objections. But Senate Majority Leader Mitch McConnell of Kentucky and several other Republican senators are simply ignoring the 2nd Circuit’s decision. They reject legislative efforts to reform the call records program in a meaningful way and instead call for the reauthorization of Section 215, due to expire on June 1, with at most a few cosmetic changes.

The McConnell approach will not pass both chambers of Congress and will lead to massive uncertainty. Under the current program, the government requests the Foreign Intelligence Surveillance Court at 90-day intervals to order the telephone companies to turn over the telephone call records of tens of millions of Americans. The next government application for an order is due Friday. The 2nd Circuit does not have direct jurisdiction over the FISC, but in light of its decision, neither the government nor the telephone companies can be assured the FISC will issue such an order now or in the future. And the government is legally barred from obtaining call records from the telephone companies without a FISC order.

The sensible solution is for the Senate to immediately pass the House bill.

That bill is by no means perfect, but it would prevent the government’s bulk collection of call records. The government would no longer retain the call records of tens of millions of Americans in its computer files. Instead, call records would remain in the possession of the telephone companies and the government would need an order issued by the FISC to obtain the specific classes of call records it requires as part of a specific anti-terrorist investigation.

Significantly, the president and the intelligence community support the House bill.

After the Edward Snowden revelations, they conducted a detailed study of the bulk collection program and determined it was not needed to protect national security. (The intelligence community could not point to a single terrorist attack that had been thwarted by the program.) Furthermore, they recognized call records reveal extremely sensitive information about individual Americans and that it was potentially dangerous to enable the federal government to have access to all that information in its computer files.

Despite the position of the intelligence community, McConnell and several other Republican senators contend the House bill will jeopardize national security. They say the telephone companies, unlike the government, may not retain the call records.

But, in fact, the companies do retain call records for substantial periods for their own purposes and, in an era where terrorists routinely change phone numbers, extremely long retention periods are of little value. The Republican senators also say the government will not be able to access call records quickly enough if the records are in the possession of the telephone companies.

But the USA Freedom Act provides for protocols and procedures that assure the government prompt access to call records. Finally, the Republican senators make the bizarre argument that the privacy of Americans will be jeopardized if telephone company officials, rather than highly trained NSA officials, have access to call records. They seem to forget that telephone company officials already have access to the call records of their subscribers.

The Senate should now pass its version of the USA Freedom Act, which is co-sponsored by Sens. Patrick J. Leahy, D-Vt., and Mike Lee, R-Utah, and supported by Sen. Ted Cruz, R-Texas. The resulting legislation will not contain every reform of NSA surveillance needed to protect civil liberties. But at least it will put an end to a dishonest decade where the federal government, with the approval of the FISC, used a far-fetched secret interpretation of Section 215 of the Patriot Act to systematically collect the call records of Americans.

Joe Onek, a principal at The Raben Group, was co-counsel for the Center for National Security Studies on several briefs on the call records issue.