The midterms saw defeat of several surveillance reformers in the Senate, notably Mark Begich and Mark Udall, and the arrival of ardent authoritarian Tom Cotton. But even had reformers won, electing surveillance reformers does not of itself make surveillance reform more likely. There are certain policy outcomes that are not permitted, and real surveillance reform is not permitted.
Here at Digital Fourth, we offer a more radical and more realistic perspective. What is not permitted has in the past included ending Jim Crow, ending legal discrimination against gay and lesbian people, and electing professed atheists to public office. The parameters of the not permitted can shift more abruptly than it’s possible to imagine ahead of time. Ending the mass surveillance state may be not permitted, but it can absolutely be done.
In a global sense, as even the Boston Globe has noticed, the actual opinions of the people have had no measurable effect on US national security and foreign policy. The party in charge may change, but the deep state remains in power, and the fundamental assumptions of American imperial management remain essentially the same.
Despite this, the change in control of the Senate has meaningful strategic implications for how surveillance activists should be pursuing the battle against mass surveillance over the next two years, both federally and at the state level. So, follow us below the fold for the first in our five-part analysis of next steps for the movement.
PART II: CIA and Elite Torturers Win, The Rule of Law Loses
PART III: Congress & Obama At Daggers Drawn – Except Where It Really Counts
PART IV: Surveillance Doesn’t Pay: The New Massachusetts Political Landscape
PART V: And I Have Seen Blue Skies
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The most important inflection point in the next Congress is the fact that Section 215 of the PATRIOT Act – the ‘tangible things’ provision that has been interpreted to authorize the US phone metadata dragnet – is set to sunset on June 1, along with certain other Fourth Amendment-damaging PATRIOT Act provisions.
Section 215 has been demonstrated to be useless for thwarting terrorist attacks, but it’s exceedingly important to the deep state. Mass metadata collection is the surveillance state’s raw fuel. A Section 215 sunset would blow a small but significant hole in the ability of US surveillance agencies to monitor the world’s communications for signs of dissent. It is therefore reasonable to presume that one of the top priorities for both the Obama administration and for NSA sympathizers in the new Congress will be to find a must-pass vehicle for reauthorizing Section 215.
What will that vehicle be? There are several competing possibilities.
Currently, Section 215 reauthorization has been attached to the USA FREEDOM Act, which purports to reform the NSA. That fact played a key role in the refusal of our national affiliate, Restore The Fourth, to support the Senate’s changes to the USA FREEDOM Act. Bluntly, unless that language is removed, movements to pass some version of the USA FREEDOM Act can now best be interpreted as being primarily about securing Section 215 reauthorization.
A second option is that Congressional leaders will deem the USA FREEDOM Act dead in its current form, and will seek to attach Section 215 reauthorization to a new Authorization to Use Military Force to govern our brand-new war against ISIS. Republican leaders are more reflexively bellicose than rank-and-file Republicans or the Democratic leadership, so Senate control increases the chances of a new AUMF, which would serve the purposes of war better than the current tendentious overextensions of the 2001 AUMF against al-Qaeda. If this turns out to be the strategy, then the best defense against Section 215 reauthorization will be to argue that it would be politically unwise for Republicans to provide the President with legal cover for a new war America is highly unlikely to win.
The third realistic possibility is that Section 215 reauthorization will be attached to either a Defense Department continuing resolution or an actual new defense appropriations bill. The divided Congress has since 2010 funded the government through a jerry-rigged mess of `continuing resolutions’ that merely continue existing funding levels, but without which large portions of the government would shut down (remember?). A unified Republican Congress would likely be able to agree on steep increases in defense spending to send to the President’s desk, because there are far more militarist (I won’t say, “moderate”) Democrats than anti-militarist Republicans. The President, having just launched a new war, would then be unlikely to veto such a bill, making it a suitable way to slip a Section 215 reauthorization in.
Surveillance reformers, to some extent, have the whip hand here. If nothing is done – and with Congress, that’s always a good bet – Section 215 will sunset. Even before the Snowden revelations, it came so close to sunsetting in 2012 that the President used a highly unusual “autopen” signing maneuver to keep it going. If we can highlight this as a separate and controversial issue, we stand a good chance of achieving the sunset. Therefore, we will be working over the next six months with other outside groups, including Restore The Fourth, to make Section 215 sunset on schedule.
Stand by tomorrow morning for PART II: CIA and Elite Torturers Win, The Rule of Law Loses.
PART III: Congress & Obama At Daggers Drawn – Except Where It Really Counts
PART IV: Surveillance Doesn’t Pay: The New Massachusetts Political Landscape
PART V: And I Have Seen Blue Skies
Like our work? Donate today!
This is a very good analysis and incredibly important read for anyone concerned about civil liberties, and in particular protections guaranteed by the Fourth Amendment. Thank you for pulling it all together and laying it out in such a succinct piece. Keep up the good work. I look forward to the coming editions.