Over the weekend, three provisions of the Patriot Act expired thanks to the machinations of Sen. Rand Paul (R-KY). That expiration drew the ire of major political figures from both sides of the aisle.
Sen. Claire McCaskill (D-MO) ripped Paul, saying he was the only obstacle to consensus on the Patriot Act. Sen. Dianne Feinstein (D-CA) said, “It’s so irresponsible for one senator to prevent action to extend and reform three key counterterrorism tools for his own political gain,” accusing Paul of “holding critical national security programs hostage to raise political donations.”
The White House stated, “On a matter as critical as our national security, individual Senators must put aside their partisan motivations and act swiftly. The American people deserve nothing less.” Attorney General Loretta Lynch said the sunset would create a “serious lapse” in national security. Director of National Intelligence James Clapper said that the country would drop an “important capability that helps us identify potential US based associates of foreign terrorists.”
The anger wasn’t relegated to the Democratic Party; Se. John McCain (R-AZ) said, “I think he obviously has a higher priority for his fundraising and political ambitions than for the security of the nation.” Senate Majority Leader Mitch McConnell said, “We shouldn’t be disarming unilaterally as our enemies grow more sophisticated and aggressive, and we certainly should not be doing so based on a campaign of demagoguery and disinformation launched in the wake of the unlawful actions of Edward Snowden.” House Speaker John Boehner (R-OH) said, “Anyone who is satisfied with letting this critical intelligence capability go dark isn’t taking the terrorist threat seriously.”
Paul responded by accusing his opponents of “secretly want[ing] there to be an attack so they can blame it on me.”
So, what exactly are the provisions of the Patriot Act that expired? There were three basic provisions:
Metadata Gathering. This was the most controversial provision of the Patriot Act. Under section 215 of the Patriot Act, the government had collected metadata on American citizens – i.e. the coming and going phone numbers and times and dates and lengths of phone calls – en masse without particularized warrants from the Foreign Intelligence Surveillance Act (FISA) courts. This provision, according to review boards appointed by the government, has not stopped a terrorist attack.
Roving Wiretaps. This provision of the Patriot Act allowed federal law enforcement to get a blanket warrant for all phones under the control of a particular suspect. Now, thanks to the sunset, the government will have to ask a judge for warrants on each individual device for a suspect. The government has used the provision less than one hundred times per year.
Lone Wolf Terrorists. This provision of the Patriot Act allowed intelligence agencies to monitor a “lone wolf” terror suspect who is not technically associated with a terrorist entity. Under the provisions of law prior to the Patriot Act, the government had to offer “specific and articulable” facts to a FISA court of a connection to a foreign terror group.
What will happen if the provisions are allowed to die? This is where the argument truly lies. If bulk metadata collection disappears, presumably we will have to take more threats seriously, if James Clapper is telling the truth (an always dubious proposition). But terror cases have largely been gathered from traditional tools. Richard Clarke, former White House counterterrorism advisor, said, “Although we might be safer if the government had ready access to a massive storehouse of information about every detail of our lives, the impact of such a program on the quality of life and on individual freedom would simply be too great.” When it comes to roving wiretaps, grabbing warrants for the phone numbers of people other than terrorists creates privacy problems, as well as evidentiary issues – and terrorists are smart enough to move phones and sites regularly. As to the “lone wolf” provision, perhaps the feds are interested in using the provision more now, but at this point, they have not used it a single time.
So, where do we go from here? There are essentially three options:
The USA Freedom Act. The bill, backed by Republicans including Senators Ted Cruz (R-TX) and Mike Lee (R-UT), and supported by President Obama, would prevent the government from getting bulk metadata warrants from judges. Instead, the NSA would have to ask for specific information about specific suspects. The bill would also strengthen transparency requirements from the government, and allow declassification of certain FISA court records. The two non-metadata provisions that expired would be reinstated as well. Paul opposes the act, but has said he would consider supporting it were he allowed amendments to it.
Let The Patriot Act Die. This is the ideal scenario for Paul and those on the far left who have allied with him. Should the Patriot Act die, it would become significantly more difficult for the federal government to follow terror suspects and gather their data over time. As Heritage Foundation notes:
[A]ccording to a report by the House Permanent Select Committee on Intelligence, using the authorities under Section 215 of the PATRIOT Act and Section 702 of the FISA has contributed to thwarting 54 total international terrorist plots in 20 countries.
Restore The Patriot Act In Its Entirety. This option, preferred by Jeb Bush as well as McConnell, could run afoul of court rulings, and ignores the privacy protections that rightly concern many Americans. The Patriot Act itself was not written to authorize the collection of bulk metadata by the government.
The controversy over the Patriot Act and the misuse of it by the federal government should rightly concern Americans. It does indeed balance the risk of privacy violations against the risk of terror attack. But to suggest that there is no middle ground that does not violate the Fourth Amendment, as both Senator Paul on the one hand and Senator McConnell on the other have, simplifies the situation beyond realities on the ground.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.