The Senate has failed to pass the “USA Freedom Act,” which would have hobbled our government’s efforts to conduct electronic surveillance of terrorists. Good. As Mitch McConnell argued, with ISIS and other blood thirsty terrorist groups on the rise, this is “the worst possible time to be tying our hands behind our back.”
Former Attorney General Michael Mukasey and former NSA and CIA director Michael Hayden have described the “USA Freedom Act” as “reform only ISIS could love.” But they are wrong. Ted Cruz loves it too, or at least liked it enough to vote against the filibuster that blocked it. In effect, Cruz voted for the legislation.
Mukasey and Hayden explain why a vote for the “USA Freedom Act” is a vote to hamstring our intelligence services in their efforts to keep America secure:
For starters, the bill ends the National Security Agency’s bulk collection of what is called telephone metadata. This includes the date, time, duration and telephone numbers for all calls, but not their content or the identity of the caller or called, and is information already held by telephone companies.
The bill would substitute a cumbersome and untried process that would require the NSA, when it seeks to check on which telephone numbers have called or been called by a number reasonably associated with terrorist activity, to obtain a warrant from the Foreign Intelligence Surveillance Court, or FISA court, and then scurry to each of the nation’s telephone-service providers to comb through the information that remains in their hands rather than in the NSA’s.
Nothing in the bill requires the telephone companies to preserve the metadata for any prescribed period. Current Federal Communications Commission regulations impose an 18-month retention requirement, but administrative regulations are subject to change. It isn’t hard to envision companies that wish to offer subscribers the attraction of rapid destruction of these records, or a complaisant bureaucracy that lets them do it.
Perversely, the Act would make it more difficult for law enforcement officials to obtain metadata on terrorist communications than on the communications of garden-variety criminals:
The bill’s imposition of the warrant requirement on the NSA would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case, which is simply to aver that the information is needed in connection with a criminal investigation—period.
The case for the Act rests on the paranoid style politics we’ve come to associate with Rand Paul:
Proponents say this change is necessary to allay fears that the NSA could use telephone metadata to construct an electronic portrait of an American citizen’s communications, and determine whether that person has, say, consulted a psychiatrist, or called someone else’s spouse.
However, only 22 people at the NSA are permitted access to metadata, and only upon a showing of relevance to a national-security investigation, and they are barred from any data-mining whatsoever even in connection with such an investigation. They are overseen by a Madisonian trifecta of the FISA court, the executive and committees of Congress.
The Act’s solicitiousness of terrorist privacy rights extends to overseas communications:
Under the bill, if the FISA court directs any change, however technical, in the gathering of information from foreigners abroad, no information gathered before the change is implemented could be used before any official body in this country—agency, grand jury, court, whatever.
Then, there is the insertion of a permanent, court-appointed advocate to oppose government applications before the FISA court. As Mukasey and Hayden point out, “even when the government applies for wiretaps or search warrants in ordinary criminal cases there is no advocate opposing the application.” Why does Ted Cruz want to treat terrorists more favorably than ordinary criminals?
Judge John Bates, a former presiding judge of the FISA court and no rubber-stamp for the government, has objected to the use of such an advocate in national security cases. He notes that this advocate cannot conceivably be aware of all the facts, and would simply add to the burdens of the court. The result could well be a sacrifice of both national security and privacy.
Hmmn. An advocate who doesn’t know all the facts gumming up the works. Sounds like the perfect job for Rand Paul.
The FISA court was never intended to be an adversary tribunal; it is simply an extra safeguard against abuse. By converting FISA into an adversary tribunal, the Act would, in the words of Mukasey and Hayden, create a three-headed constitutional monster:
It is a violation of both the separation of powers principle and the Constitution’s appointments clause by having judges rather than the president appoint the public advocate, and then it has the advocate litigate against the Justice Department when both executive offices are supposed to be controlled by the president.
Not surprisingly, Eric Holder supports the “USA Freedom Act.” Not surprisingly, Rand Paul opposed it for not going far enough. He wanted to repeal the Patriot Act too. But what about Ted Cruz?
He has embraced Rand Paul style paranoia before. However, I had hoped that the rise of ISIS would produce a sobering effect on Cruz. Apparently not.
There was, though, one prominent 2016 presidential prospect who voted against the “USA Freedom Act” and for the right reasons — Marco Rubio. I struggle with a Rubio candidacy because of his alliance with Chuck Schumer on behalf of amnesty and a path to citizenship for illegal immigrants. Given his vote in favor of hobbling our fight against ISIS, I will struggle at least as much with a Cruz candidacy.