Sunday’s Important Senate Vote for National Security

On Sunday, May 31st the Senate will return early from its Memorial Day recess for a rare Sunday session to vote on whether to extend provisions of the Patriot Act that expire at midnight that day. Controversy surrounding one of these provisions – the NSA metadata program – prevented the Senate from passing legislation on this matter before it left for its recess.

This will be a difficult vote for security-minded senators since I believe they must vote for a flawed House bill to continue the metadata program.

This NSA collection program – also called the 215 program – collects phone records, not the contents of phone calls – to establish connections between terrorist suspects. Majorities of House and Senate Intelligence Committee members have defended this program as an effective and important counterterrorism tool. 35 out of 38 court cases have upheld it as legal and constitutional.

Unfortunately, the metadata program has been misrepresented as illegal and unconstitutional by privacy advocates and some libertarians in the aftermath of fearmongering about NSA surveillance caused by leaks of classified information by former NSA technician Edward Snowden. Senator Rand Paul claims this program would offend America’s founding fathers and allows the government to monitor the phone calls of all Americans.

For more background on the metadata controversy, see my May 11, 2015 National Review article NSA Data Collection: Necessary or Constitutional?

Senator Paul and other critics of the metadata program have ignored its defenders who point out that this program has been carefully overseen by the Executive Branch, the Congressional oversight committees, and the courts. Critics of the program have ignored outspoken support of it by Senator Dianne Feinstein and former CIA acting Director Michael Morell. Feinstein has said the program helped stop at least three terrorist attacks. Morell said in a December 27, 2013, Washington Post op-ed that “Had the [metadata] program been in place more than a decade ago, it would likely have prevented 9/11. And it has the potential to prevent the next 9/11.”

Senator Paul recently claimed that a new Department of Justice Inspector General Report supports his position since it says “The agents we interviewed did not identify any major case developments that resulted from the records obtained in response to Section 215 orders.”

However, the DOG IG report also says “Agents and attorneys told us that Section 215 authority continued to be a valuable investigative tool particularly when the material sought by the FBI was not available through other investigative authorities.”

This confirms what I know about intelligence analysis based on my 19 years as a CIA analyst. Rarely is one “smoking gun” source behind an intelligence analysis. I often used over a hundred raw intelligence reports to write an analysis with none being indispensable. While I continue to believe that metadata was the smoking gun source in stopping terrorist attacks against the United States, this is not an appropriate standard to judge the usefulness of intelligence sources.

Fox News Host Megyn Kelly confronted Senator Paul on The Kelly File on May 26 and charged him with overstating his case against the metadata program. She also pointed out that it is not true that “the NSA is spying on all your phone calls.” Watch this interview below.

Senate Majority Leader Mitch McConnell has called for a “clean” extension of the NSA metadata program because of a growing threat to the United States from homegrown terrorists inspired by ISIS. McConnell has resisted a House bill, the USA Freedom Act of 2015, that would extend but significantly weaken this program.

McConnell hoped before the recess to pass a bill to extend the Patriot Act as-is for a few weeks or days to allow negotiations with the House to improve the USA Freedom Act. This effort failed as did votes to pass the House bill. Most Democrats voted for the House bill and against short extensions of the Patriot Act. Most Republicans voted the other way.

Senator Paul wants to end the metadata program and has threatened to filibuster any bill to extend it, including the House bill which failed to get a filibuster-proof majority in the Senate by three votes, 57-42.

While there were discussions during the recess between House and Senate staff members on how to improve the USA Freedom Act to address Senator McConnell’s concerns, I believe it is unlikely that any changes will be made to the bill given its overwhelming support in the House and the support of almost all Senate Democrats.

Although I agree with McConnell, it is time for him to fold. The best course of action in Sunday’s Senate vote, as former U.S. Assistant Attorney Andrew McCarthy recently advised, for GOP senators to hold their noses, accept the USA Freedom Act, “and get cracking on a compelling political and legal argument to restore the program — one that can change minds in Congress and be signed by the next president.”

This is an unsatisfactory outcome but will be far better than allowing the metadata program to lapse. It also is important that Republican senators stand up to Senator Paul’s demagoguery on this issue and do a better explaining to the American people why robust and carefully overseen intelligence collection programs are needed to protect our country in an increasingly dangerous world.