Rand Paul and Surveillance Reform, Part II

My post from yesterday about how Rand Paul hijacked the surveillance reform debate provoked a series of interesting responses both via e-mail and on Twitter, including a note from a staffer for Senator Paul, who gave me permission to share the following passage:

Senator Paul has introduced a myriad of amendments to the USA FREEDOM Act, several along with Senator Ron Wyden, that illustrate his commitment to having a full-throated debate about more than just the importance of ending Section 215. They include prohibiting backdoor searches under 702, requiring court approval for NSL’s, prohibiting the government from mandating that businesses weaken their encryption protocols, and others.

To similar effect are the following three tweets, from my Just Security colleague Jennifer Granick, surveillance law (and everything else) guru Marcy Wheeler, and Antiwar.com’s Justin Raimondo:

Just to set the matter straight, the point of my post yesterday was not to suggest that Senator Paul himself is indifferent to these other surveillance authorities, or that he has made no effort to reform them. Rather, my point was that the way in which he has pursued section 215 reform has, intentionally or not, crowded out what to me are the far more important conversations that I believe we should be having about Executive Order 12,333, the FISA Amendments Act of 2008, and the nature of judicial review before the FISA Court (to similar effect, consider Chris Soghoian’s comments from yesterday). In other words, if Senator Paul actually agrees with me that these other authorities (and increased oversight and accountability of all U.S. foreign intelligence surveillance programs) are the more important focuses of any current surveillance reform debate, he’s picked an awfully strange way (and used some rather overheated rhetoric about the phone records program) to show it. After all, keep in mind that it was the very same Senator Paul who all-but-singlehandedly torpedoed the Leahy bill back in November, helping to force the entirely unnecessary political and legal brinkmanship of the past week. Senator Paul’s defenders may simply chalk that up to a political miscalculation, but at a minimum, it only underscores the very real cost of such a myopic focus on section 215 at the expense of the rest of the surveillance reform conversation.

So, in point of fact, I’m not blaming Senator Paul, and him alone, “for our not yet being able to address 702 and 12333”; I didn’t “miss[] the points where Rand Paul was raising 12333 and 702”; and I never suggested (dishonestly or otherwise) that Rand Paul hasn’t attacked the deficiencies in the USA FREEDOM Act. Instead, my point was (and remains) that, like the examples of libertarian hijacking that I’ve documented previously, once again, it appears that Senator Paul’s efforts to seize the national spotlight in order to focus everyone’s attention on a hyper-specific question of national security law and policy will likely come at the expense of the more important debate that we can and should be having about similar programs. In that regard, Senator Paul’s role in the 215 expiration affair closely resembles his focus on whether the FY2012 NDAA was going to authorize World War II-like internment camps, which distracted us from serious concerns over the scope of the detention authority it conferred overseas (and culminated in the rather modest Feinstein Amendment). And it also closely resembles his filibuster of John Brennan’s nomination to be CIA Director because of a concern over drone strikes against U.S. citizens on U.S. soil, which distracted us from an opportunity for a real conversation about targeted killings everywhere else (all the more so given his dropping of the issue once Attorney General Holder made the rather tautological concession that such strikes would never be used “outside of combat operations”).

That’s not necessarily because Senator Paul doesn’t want these debates too, of course. Instead, it’s because we (or, at least, the members of Congress) have such a limited attention span–and may well think that, if a politician’s number-one priority as President is ending the bulk phone records program, there can’t be anything else out there that warrants similar (if not greater) attention. 

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).