The surveillance state is on hiatus, sort of, except not really

UPDATE: The U.S. Senate overwhelmingly passed the House of Representatives’ changes to sections of the PATRIOT Act, Tuesday evening, known as the USA FREEDOM Act, after GOP Senate leaders failed to get any of the changes they wanted to the House bill. The final vote was 67-32. It now heads to President Obama’s desk for his signature.

As of midnight Monday morning, three provisions of inappropriately acronymed PATRIOT Act expired, leaving the National Security Agency with limited power of spying, dragnet style, on everyday Americans. Limited, but not eliminated.

The disposition of the NSA’s powers could be delayed for only a few days, if in that time the Senate passes, as is, the PATRIOT Act revisions contained in the USA FREEDOM Act, sent to them by a bipartisan House of Representatives. Or, it could take up to several months, if the Senate sends back amendments and revisions to what Rep. Adam Schiff (D-California) called a “carefully crafted compromise.”

What is clear is that there is no sudden gap in our intelligence gathering that leaves Americans particularly more vulnerable than we have been since the abuses of our liberties were originally enacted fourteen years ago. Indeed, there has been zero evidence that this unconstitutional activity has unearthed a single plot against the homeland. And, of course, they have workarounds in the intelligence community, for what may be just a dash of inconvenience served with a platter full of rhetoric.

“We call on the Senate to ensure this irresponsible lapse in authorities is as short-lived as possible,” Josh Ernest, the president’s press secretary, wrote in a statement, after Sunday’s vote in the Senate to move the House bill forward. “On a matter as critical as our national security, individual Senators must put aside their partisan motivations and act swiftly. The American people deserve nothing less.”

But, as the Washington Post reported, Monday:

“Three provisions that expired — allowing the bulk collection of phone records, the ability to investigate ‘lone wolf’ American terrorists and the ability to investigate suspects who switch phones — have grandfather clauses that let any investigation started before June 1 continue indefinitely.”(emphasis mine)

Any new investigations will have to wait, and so will the bulk phone data collection, because the Obama administration has chosen not to continue that extremely unpopular program until they see what the Senate will do to the House bill.

In the House’s FREEDOM Act, telecommunications companies would not have to turn over any data records of their customers without a warrant from a FISA court targeting a specific account. The Act gives the intelligence community six months to adapt to the new rules. The hawks in the Senate, though, have other ideas, including extending the transition period to a full year, and requiring the phone and data companies to let the NSA know if they keep records for less than a 18 months.

rand_nsaThe other issue for Mitch McConnell’s Senate is transparency. According to Bloomberg, the FREEDOM Act, passed by the House, calls for “the government to declassify significant decisions and legal interpretations” advanced by the FISA court. But the Republican majority leader tried to get through a revision, Sunday, that would have eliminated that provision.

That won’t fly on the other side of Capitol Hill. “The House is not likely to accept the changes proposed by Senator McConnell,” several high ranking Representatives, from both sides of the aisle, said in a statement, Monday afternoon. “Section 215 [which authorizes bulk data collection] has already expired. These amendments will likely make that sunset permanent,” they warned, implying that changes will mean the end of the PATRIOT Act, forever.

For Sen. Rand Paul (R-Kentucky), whose obstruction of the Senate even trying to get an extension passed, in whatever form, helped bring Congress to this point, these are heady times. He’s not going to be able to stop the Senate from passing some kind of a surveillance bill, Tuesday. But any changes his colleagues are likely to put in the legislation will become poison pills in the House.

And there’s this. A poll released Monday shows that twice as many people prefer Paul’s let-it-expire approach to McConnell’s extend-everything tack. although neither Kentuckian spoke for the poll’s plurality of extend-but-modify.

From this point on, it doesn’t matter, politically, which approach turns out to be the winner. In the battle of Bluegrass State leadership, at least, it seems the one who has the title finds himself closing the door to an empty barn, as the sound of galloping hooves recedes over the hill behind him, and the curly-topped rodeo clown, throat sore from hootin’ and hollerin’, smiles back at him knowingly, eyes glinting in the diminishing sliver of light, before the barn goes dark and the bar slides across the door.


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