For years, Ron Wyden was one among lonely voices insisting that the U.S. government really shouldn’t be taking notes on every citizen’s telephone conversations. Against a lot of people with big titles and a Top Secret authority, the Oregon senator argued that government shouldn’t do bulk collection of metadata — keeping records on whom you talked to, when and for how long, on the grounds that it might someday be relevant to a terrorism investment.
But as of this month, Wyden has some company on his side – three federal appeals court judges.
Wednesday, he was joined by 338 members of the House of Representatives.
Talk about bulk collection.
The Patriot Act, written in a hurry after after 9/11 and passed without what you might call a close reading, expires June 1 unless it’s reauthorized. It allows the government to collect information that might be helpful in a terrorism investigation, an instruction the government under two presidents has interpreted expansively, not to say imaginatively.
“I want to deliver a warning this afternoon,” Wyden told the Senate in 2011. “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry.”
This month, the 2nd U.S. Circuit Court of Appeals in Manhattan ruled on the government’s use of that power. Maybe you wouldn’t say Judge Gerald F. Lynch, writing for a unanimous panel, was stunned and angry, but he didn’t sound happy.
Lynch didn’t say, as some critics have, that collecting the data was unconstitutional, partly because he didn’t have to get to that part; he found the collection was illegal.
“Such an expansive concept of “relevance” is unprecedented and unwarranted,” he declared. “The Statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here.”
As a result, the language of the Patriot Act “cannot bear the weight the government asks us to assign to it, and that it does not authorize the metadata program.”
Last week, the judges – and Wyden – picked up some more agreement. As the House debated renewing the Patriot Act, Rep. F. James Sensenbrenner, Jr., R-Wis., said about collecting the metadata, “This program is illegal and based on a blatant misinterpretation of the law.”
As chairman of the House Judiciary Committee in 2001, Sensenbrenner largely wrote the Patriot Act.
Wednesday, by 338-88, the House voted to ban the government collection of metadata – although the information would be collected by the telephone companies, and the government could get it if necessary. Votes on more extensive reforms were not allowed.
In the Senate, Majority Leader Mitch McConnell, R-Ky., says he’s determined to reauthorize the Patriot Act without change. Last Sunday on MSNBC, Wyden said he would filibuster to prevent that, declaring, “I’m tired of extending a bad law.”
In an interview Thursday, Wyden said, “Wednesday’s vote in the House was a big win for liberty,” and while he’d prefer wider reform, “I think it would be a very significant step forward to stop the government dragnet of Americans’ phone records.” He thinks the change has a good chance in the Senate, noting that an effort came within a few votes last year, and that several freshmen Republicans campaigned on the issue.
McConnell, however, is holding a hard line. Last week he brought in intelligence officials and held a rare closed session of the Senate, with some Republican senators declaring afterward that government information-gathering powers should not be limited but increased.
Wyden is determined to prevent a no-changes extension, and his filibuster pledge has been joined by the libertarian Rand Paul, R-Ky. They refer to themselves as the Ben Franklin Caucus, after the Founding Father who pronounced that those who would give up liberty for security deserve neither.
Wyden says that after 14 years on the Senate intelligence committee, he knows the drill. As the deadline approaches, the Senate will be told there’s no more time for debate, and “if we don’t extend it, people will die and buildings will blow up.”
When that happens he has a plan. He plans to take up the report of the president’s advisory group on intelligence, and read, “All evidence suggests that the collections … were not essential for preventing attacks” and that any needed information could have been gathered through normal processes.
Supporters of data collection, he says, “have always counted on the other side blinking.”
This time, Wyden will try to keep his eyes open – and some government ears closed.
This column appeared in The Sunday Oregonian, 5/17/18.