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Monday, June 01, 2015

What really happened yesterday

by digby

It's nice that everyone thinks the good guys got a win last night on the Patriot Act. The good guys deserved one. Unfortunately, it's a bit of an exaggeration as March Wheeler explains over at Salon:

The PATRIOT Act-authorized phone dragnet expired last night. For the first time since 2006, the NSA won’t receive records of the phone calls you make within the United States.

But that doesn’t mean spying on Americans has stopped. The NSA still obtains records of calls — potentially all calls — you make with people overseas. It still tracks Americans’ Internet communications using metadata obtained overseas. The FBI can still access the content of any communications Americans have with foreigners targeted under PRISM without a warrant or even any evidence of wrong doing. FBI can still, and indeed does, obtain phone records of individuals in conjunction with national security investigations without any court review.

Not even the spying conducted under Section 215 — the authority that had been used to collect all of Americans’ phone records, but which is also used to collect certain kinds of Internet data — or the two other expiring provisions will stop. Because they’re tied to more focused investigations (though the Internet collection is probably not targeted at one individual), they will probably continue under a grandfather clause allowing ongoing investigations using those authorities to continue.

So in spite of all the alarmism you’re hearing, not much changed today. A phone dragnet that has never stopped a terrorist was shut down, but will probably be restarted later this week or next, for at least 6 months.

Rand Paul is getting credit (or being blamed) for the lapse in the program. But that’s actually not correct. As Harry Reid and Patrick Leahy laid out in speeches last night, Majority Leader Mitch McConnell set up this lapse by delaying considering of the House-passed USA Freedom Act. While McConnell would have preferred a short-term extension, creating urgency that would give the Senate more leverage to weaken the so-called reform bill, he clearly wanted to foster the sense of crisis. But this deliberately manufactured crisis just got away from him.

McConnell will now use the claims of crisis to try to push through changes he and other surveillance hawks have been demanding for a year — things like forcing providers to retain metadata they otherwise have no need for and delaying the end of the dragnet program an extra six months.

Probably — as Rand Paul admitted last night — that’s what will happen: A weaker bill will be rushed through the House. If it is too much weaker, it will face further delay, and maybe defeat; but on some issues, like data retention, McConnell is actually asking for less than providers have already agreed to. If turnover to the new program is extended too long, the ACLU may have legal means to muck up the transition.

The biggest outcome of the last two weeks, then, may ultimately stem from the misperception that Rand Paul has caused this delay and not Mitch McConnell. Mitch McConnell will still get what he wanted all along, but Paul will get credit for fighting a good fight.

I think it's good that civil libertarians made a big deal out of this regardless of the outcome. It benefits Paul in the short run, which I don't much care for, but in the long run we're better off if people are talking about this. It spooks the spooks, at least a little and they may be a bit less reckless if they think somebody out there gives a damn.

But I am a pessimist about such national security "reforms" in general since there's little evidence that they ever actually stop anything and in the end they almost always result in some kind of "legal" framework to allow something that was previously unheard of. I hope I'm wrong this time but watching the GOP go at it on national security and listening to the hysterical speeches in the Senate yesterday, I'm pretty confident that as long as the GWOT exists -- decades at least --- this is not going to get a lot better. As I said, fighting the good fight is important on a psychological basis (which is where I think the future of true reform lies) so I'm not knocking anyone for doing it. But it's important to stay vigilant.

And there are political implications to all this, which Marcy nicely outlines in the rest of her piece.  I suspect that Paul's stand on civil liberties will not make much of an impression in the GOP nominating process because I believe that party is as hawkish as it's possible to be and that the only reason any Republican would balk at government surveillance of any kind is because a Democrat is for it or because they are, as Marcy points out, threatened by a civil liberties Democrat at the polls.

She points out a couple of races where that may be in play and it says to me that this is something Democrats should exploit more than Republicans. Yes, the president is pretty much a surveillance hawk but there is a large faction of Democratic voters, much larger than in the GOP, who aren't.
Donna Edwards voted against the USA Freedom Act forcing her primary opponent Chris Van Hollan to switch. There's a lesson in this --- the Democratic activist base is much more committed to civil liberties than the Republicans. Civil liberties activists like say, anti-abortion activists on the right, actually vote on those issues. This is an organizing opportunity and an important one. Marcy points out that when politicians see their electoral futures hinging on these issues perhaps we'll see some legitimate legislative change. As I said, I'm a pessimist on this but I'm not hopeless. And anyway, it's important to keep whatever heat we can on the spies.