Senator McConnell’s Modest Proposal to Reform Section 215: Don’t!

With only 14 legislative days remaining (in the House, anyway) before Section 215 of the USA PATRIOT Act (which the government argues, and the Foreign Intelligence Surveillance Court has held, provides statutory authorization for the NSA’s bulk telephony metadata program) expires, how should Congress tackle surveillance reform? The answer is easy if you’re Senate Majority Leader Mitch McConnell: don’t.

Late Tuesday, McConnell introduced legislation that would simply extend the existing authority through 2020 (a “clean” reauthorization) — and then used some procedural legerdemain to short-circuit referral of the bill to any of those pesky committees. Of course, neither McConnell’s bill nor his statements in support address any of the concerns raised about Section 215 by, among others, (1) privacy and civil liberties groups; (2) a diverse and bipartisan array of members of both Houses of Congress; (3) the Privacy and Civil Liberties Oversight Board; (4) the President’s own Review Group on Intelligence and Communications Technologies; and (5) the President himself. Nor does the bill do anything with the various far more detailed reform proposals that culminated in the Senate version of the USA FREEDOM Act, which died an ignominious death when it fell two votes short of receiving cloture last fall.

I don’t mean to reopen or rehash the debate over how Congress should reform Section 215 (or various other controversial US surveillance authorities). Rather, I mean only to emphasize how utterly ridiculous McConnell’s proposal actually is: Such a “clean” reauthorization of Section 215, as I explained in an earlier post, would surely be understood as congressional ratification of the precise controversial interpretation of Section 215 that provoked such a firestorm after the phone records program was disclosed by Edward Snowden in June 2013. (After all, unlike in 2010 and 2011, now there can be no question that Congress and the American people are fully aware both of the government’s interpretation of the statute and the FISC’s ratification thereof.)

In other words, McConnell’s “modest” proposal would actually be a significant step backwards for efforts to reform US surveillance law, since it would codify authority that plenty of reasonable people believe that Congress never provided in the first place. More to the point, it would do so even though President Obama and senior officials within the intelligence community are on record that they don’t need such capacious and open-ended authority— and that they can easily live with the modest reforms reflected in the Leahy bill.

As Steven Dennis reports in Roll Call, Sen. Leahy yesterday said that, “This tone deaf attempt to pave the way for five and a half more years of unchecked surveillance will not succeed.” I hope he’s right, and that Congress gravitates instead toward a bill that looks more like the version of the USA FREEDOM Act that died in the Senate last November. Word on the street is that efforts to produce such a bill are afoot. But the clock is ticking… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).