When Congress finally voted recently, after the kind of setbacks and roadblocks known only to video games and the U.S. Senate, to put some limits on what the government is entitled to know about its citizens, national media knew the poster boy: Sen. Rand Paul, R-Ky.
It helps to be running for president.
The stories could easily have been about Ted Cruz.
But as Congress finally declared that the government couldn’t keep records on whom you telephoned, when and for how long – “bulk collection” – while insisting that its justification is none of your business, the moving force seemed less a Louisville slugger than something made in Oregon.
With a little help from a National Security Agency leaker who now hangs out in Moscow.
Both Oregon senators, more than the representatives of any other state, have actively challenged the government’s insistence that it’s entitled to know whatever it wants, and that citizens really don’t need to know anything about it. Sen. Ron Wyden, for more than a decade, and Sen. Jeff Merkley, since his arrival in the Senate in 2009, have been waging an outnumbered struggle against practices they often couldn’t even publicly describe.
“In December 2012, I put forth a ‘No Secret Law’ proviso,” objecting to broad but classified rulings by the Foreign Intelligence Surveillance court, recalls Merkley. “I couldn’t explain why, because (the extent of government surveillance) had not yet been revealed by Snowden.” Wyden, from his legally constrained position on the Senate intelligence committee, could only keep warning that when the truth came out, “I think the American people are going to be profoundly disturbed.”
Or at least, some congressmen might be.
Remembered Wyden last week, “When we started, when there were just a handful of us going up against surveillance and secret hearings, it was hard.”
Then, with the aid of massive revelations by Edward Snowden, profound disturbance among many congressional Republicans – including former House Judiciary Committee Chairman James Sensenbrenner, who largely wrote the Patriot Act – and a Court of Appeals decision that the government’s surveillance practices were illegal, the House overwhelmingly passed the USA Freedom Act, dealing with some concerns expressed by both Wyden and Merkley.
Standing against the new bill was Senate Majority Leader Mitch McConnell, R-Ky., who wanted to renew the Patriot Act intact. As Merkley points out, that might also have cancelled the Court of Appeals ruling, by declaring that it was indeed “the intent of Congress to authorize bulk collection.”
Without a clear statement on that, the government had been relying on secret opinions and interpretations from the Foreign Intellligence Surveillance court, which the senators knew about but couldn’t challenge – or even mention – publicly. The “secret law” process had been a longtime concern of both Wyden and Merkley.
But when the new law’s supporters finally forced McConnell to allow the Senate to vote – and it passed overwhelmingly – it changed the situation
“The USA Freedom Act,” notes Merkley, “now requires declassification of a FISA opinion that will make a significant reinterpretation of the rule of law, or a declassified summary.”
So we might even know what our government thinks it can do.
And instead of the court hearing only from the Justice Department – national security, you know – some outside voices will be allowed to submit arguments.
Moreover, government bulk collection of telephone metadata – who called who, when and for how long – is to stop. The phone companies, not the government, will hold the data, and if the government wants something in particular, it can get a warrant.
“From the standpoint of privacy,” said Wyden, “this is the most significant privacy reform in a decade,” which is about how long he’s been fighting bulk collection.
Still, the focus of the issue’s coverage was on Rand Paul, especially his 11-hour filibuster on the issue – which did mean that Paul drew all the accusations of leaving the country defenseless by any weakening of what the government had been casually accustomed to do.
Media also focused on several additional amendments on government practices that McConnell prevented Paul from offering – although, as Wyden noted, “I was the co-sponsor of almost all of them.”
The further reform agenda includes attacking the “backdoor search loophole,” allowing the government, without warrant, to look through the emails and communications of Americans if agents think the search could produce information on suspicious foreigners overseas.
That issue will likely emerge in 2017, when the FISA Act needs renewal, when the Oregon senators will be watching.
And when, one way or another, the 2016 presidential campaign will be over.
NOTE: This column appeared in The Oregonian, 6/10/15.