The vital cause of NSA reform—which seemed to be gaining strength as not just citizens but their elected representatives came to recognize the consequences of the issues raised by Edward Snowden’s leaks—has hit a rough spot in recent weeks. Allies of the cause are being defeated or abandoning their principles and major initiatives are failing.
The first bad news came November 4, when Colorado Senator Mark Udall lost his campaign for a second term. In his first term, the Democrat had emerged as one of the steadiest, and frequently most aggressive, critics of National Security Agency abuses. Arguing that there was “a groundswell of public support for reform,” and that such reform had to “reject half-measures that could still allow the government to collect millions of Americans’ records without any individual suspicion or evidence of wrongdoing,” Udall worked with Oregon Democrat Ron Wyden and Kentucky Republican Rand Paul to get Congress to crack down on the NSA.
Udall is still in the Senate until January, and he moved in the immediate aftermath of his defeat to gain Senate support for at least a small measure of NSA reform. But even that initiative fell short Tuesday night, as Udall and his allies could muster only fifty-eight of the sixty needed votes to prohibit the NSA from holding the phone records of Americans and to establish better procedures for challenging the claims and initiatives of government agencies that overreach.
Though the measure fell far short of what was needed, the American Civil Liberties Union argued that the so-called “USA Freedom Act,” which was introduced by outgoing Senate Judiciary Committee Chairman Patrick Leahy, D-Vermont, “is our chance to turn the tide on suspicionless mass surveillance, restoring some of the crucial privacy protections lost with passage of the Patriot Act in 2001.”
The ACLU advocated aggressively for the measure on the grounds that it send the right signal with regard to legislative oversight and that it would begin to establish better frameworks for protecting liberties by
*Ending nationwide bulk surveillance and limiting the government’s ability to engage in broad surveillance that inappropriately sweeps up the communications of thousands of people under Section 215 of the Patriot Act, national security letters, and pen register authorities.
*Increasing transparency by requiring declassification of relevant intelligence court decisions or the release of summaries containing critical information about these decisions.
*Creating a public advocate that can be appointed to participate in significant intelligence court proceedings to represent our privacy interests.
*Providing judicial review of gag orders that accompany national security information requests.
*Permitting companies to disclose more information about how often the government asks them to hand over data and requiring the government to disclose more information about its surveillance activities.
Udall, Leahy and every other Senate Democrat—with the exception of Florida’s Bill Nelson—voted to bring the measure up for debate. They were joined by independents Bernie Sanders of Vermont and Angus King of Maine, as well as four Republicans: Ted Cruz of Texas, Lisa Murkowski of Alaska, Dean Heller of Nevada and Mike Lee of Utah.
That got the potential reform caucus to 58, and suggested that, were the measure to have come up for a vote, it would have passed. But that was two votes short of the number needed to gain consideration. When forty-one Republicans voted no—many of them making absurd doomsday claims about the danger of protecting privacy rights—that consideration was blocked.
Strikingly, one of the Republican “no” votes came from Rand Paul, who claimed he voted “no” because the measure did not go far enough—while at the same time admitting that reformers “probably needed my vote.”
The problem with Paul’s position is that the next Senate, led by his partisan allies, is far less likely to support reform than the current one.
That’s the frustrating part about what played out Tuesday. As Leahy, who will surrender his Judiciary Committee chairmanship when Mitch McConnell’s Republicans take charge in January, said Tuesday night, “Senate Republicans have failed to answer the call of the American people who elected them, and all of us, to stand up and to work across the aisle. Once again, they reverted to scare tactics rather than to working productively to protect Americans’ basic privacy rights and our national security.” (Emphasis in original)
Udall mustered a measure of optimism.
“While our effort to rein in overbroad government surveillance did not move forward today, this is not the end of the fight to protect Americans’ privacy rights,” the senator said. “Our constitutional liberties are simply too important to be cast aside, and I won’t stop working to make sure we keep faith with our founding values.”
Udall has indicated that, though his remaining time in the Senate is short, he wants to continue to keep the faith. How far he will go remains in question. But the Coloradoan has been urged by civil libertarians and transparency advocates to take advantage of his privilege as a senator—under the Constitution’s “Speech and Debate Clause”—to read into the record details from the US Senate Select Committee on Intelligence review of the use of so-called “harsh interrogation” techniques and allegations of torture by CIA operatives.
That could shake up the whole debate about how US intelligence agencies operate—and about the secrecy surrounding those operations.
Udall was asked by The Denver Post about the issue and replied, “Transparency and disclosure are critical to the work of the Senate intelligence committee and our democracy, so I’m going to keep all options on the table to ensure the truth comes out.”
Asked specifically about taking advantage of the “Speech and Debate Clause” —as former Alaska Senator Mike Gravel did during the Pentagon Papers fight of the early 1970s—Udall said, “I mean, I’m going to keep all options on the table.”
At a frustrating moment for those who believe that the American people need to know what is done in their name but without their informed consent, it may be that Mark Udall—even in defeat—retains the ability to open up the debate that the Senate on Tuesday was unwilling to entertain.
John Nichols is the co-author with Robert W. McChesney of Dollarocracy: How the Money and Media Election Complex is Destroying America, just out in paperback from Nation Books.