With a call for “open rebellion” against the program, Senator Rand Paul (shown, R-Ky.) held the Senate floor for ten-and-a-half hours Wednesday in opposition to extending provisions of the USA PATRIOT Act that allow the National Security Agency to collect billions of telephone records and and electronic messages every day.
“We should be in open rebellion, saying, ‘enough is enough, we’re not going to take it anymore,'” Paul said of the NSA’s “metadata” program. Calling for “a thorough and complete debate,” the first-term senator asked: “Do we want to live in a world where the government knows everything about us? Do we want to live in a word where the government has us under constant surveillance?”
The PATRIOT Act was passed by Congress and signed into law by President George W. Bush following the September 11, 2001 terrorist attacks in New York and Washington, D.C. Section 215, which authorizes the surveillance activities, is due to expire on June 1, unless reauthorized by Congress. A Justice Department memo, circulated among members of Congress Wednesday, said unless Congress renews the authority or a modified version of it, the NSA will begin “taking steps to wind down” bulk collection of data as early as this Friday.
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“In the event of a lapse in authority and subsequent reauthorization, there will necessarily be some time needed to restart the program,” the memo said. The House last week passed the USA Freedom Act that amends the law by ending the authority for the bulk collections and giving intelligence agencies access to telephone and other records only when a court finds there is reasonable suspicion about a specific link to international terrorism.
“One [court] order would no longer authorize a bulk collection program, whether for telephone metadata or for other purposes,” Georgia Institute of technology professor Peter Swire told the Christian Science Monitor. Swire served on a review commission appointed by President Barack Obama after the program was exposed by Edward Snowden, an intelligence analyst with an NSA contractor. The bulk collections are “not essential to preventing attacks” and information needed to disrupt terrorist plots “could readily have been obtained in a timely manner using conventional” court orders, the president’s Review Group on Intelligence and Communications Technology said in a December 2013 report. The group was one of two independent panels that studied the program and concluded that it had not stopped terrorist plots.
Paul argued Wednesday that the Freedom Act still left the government with inordinate surveillance power, citing the liability protection it provides telephone companies as evidence that the program will continue to invade the privacy of citizens’ communications.
“One question I would ask, if there was anybody that would actually tell you the answer, would be: If we already gave them liability protection under the Patriot Act, why are they getting it again under the USA Freedom Act unless we’re asking them to do something new that they didn’t have permission for?” Paul asked. “If you think bulk collection is wrong, why do they need new authorities? Why are we giving them some new authorities?”
President Obama has said he supports the House bill and would sign it into law. But Senate Majority Leader Mitch McConnell (R-Ky.) and other leading Republicans want an extension of the program as currently authorized. Paul’s filibuster might be considered a pre-emptive strike against the Senate measure since it has not yet come to the floor. Given the Senate’s long and involved parliamentary process, it appears the extension will not be passed before the House goes on recess Thursday and it seems even less likely that the Senate will stay in session over the Memorial Day weekend to pass the House bill. The increasing likelihood that the authorization will expire before Congress acts has some in Washington worried that the nation’s security will be compromised. Representative Peter King (R-N.Y.) accused Paul of “doing a disservice to the country” by putting national security at risk.
“He’s unnecessarily frightening the American people,” said King, a member of the House Homeland Security Committee, said in an interview with Newsmax.com. “He’s making the [National Security Agency] out to be the enemy. In fact, the enemy is al-Qaida, ISIS, and Islamist terrorism, and the NSA is the key weapon that the United States has in the war against al-Qaida,” King said. “The NSA does not listen to anyone’s phone calls and does not read anyone’s emails. There have been no abuses found against the NSA.”
The argument that no abuses have been found rings hollow as a defense of a program that is conducted in and guarded with the strictest of secrecy and became known to the American people only through Edward Snowden’s illegal disclosures. Even senators and representatives serving on committees with alleged oversight of the program can’t say what they know about it. And while the NSA may or may not be listening to phone calls, the agency is gathering the e-mails of millions of Americans, along with records of all their phone calls, without probable cause for suspicion that they are involved in or are plotting illegal activities. The Fourth Amendment to the U.S. Constitution states:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.
Senator Paul, who has declared his candidacy for the 2016 Republican Party presidential nomination, promised, in an e-mail to campaign contributors, to filibuster against the program. “I will not rest,” he said in the fundraising e-mail. “I will not back down. I will not yield one inch in this fight so long as my legs can stand.”
Paul started speaking at 1:18 p.m. and quit at 11:49, yielding at various points to colleagues including two Republicans — Mike Lee of Utah and Steve Daines of Montana — and seven Democrats: Richard Blumenthal of Connecticut, Maria Cantwell of Washington, Chris Coons of Delaware, Martin Heinrich of New Mexico, Joseph Manchin of West Virginia, Jon Tester of Montana, and Ron Wyden of Oregon. Texas Senator Ted Cruz, one of Paul’s competitors for the Republican nomination, had promised to join the talk-a-thon, but was instead called to preside over the nearly empty Senate chamber.
The National Journal noted a strong connection between Paul’s senate oration and his presidential campaign fundraising, citing a message from the senator’s Twitter account alerting readers to a “Filibuster Starter Pack,” available for purchase at Paul’s online campaign store. The kit costs $30 and includes a t-shirt with the message: “The NSA knows I bought this Rand Paul t-shirt,” a bumper sticker with a similar message and a “Spy blocker” for computers.
“There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer,” Paul said Wednesday at the opening of his remarks. “That time is now, and I will not let the PATRIOT Act, the most unpatriotic of acts, go unchallenged.”
Image from Senate video of Sen. Rand Paul (R-Ky.) speaking against the Patriot Act
