Surveillance Reform: House Mid-term Election Impact Update

While seven House races remain undecided, what we do know is that seven House members who voted for the Massie/Lofgren/Holt NSA surveillance reform amendment to the FY15 DoD appropriations bill were defeated on election night. They are Shea-Porter (NH-1), Garcia (FL-26), Schneider (IL-10), Rahall (WV-3), Bishop (NY-1), Enyart (IL-12), Maffei (NY-24), and Horsford (NV-4). Incoming Rep. Blum (IA-1) made surveillance reform a part of his campaign, so he represents a pick up. While some of the remaining undecided House contest may result in a few more losses of Members who voted for surveilance reform one or more times, those losses would be of negligible, if any, impact for surveillance reform efforts. Accordingly, my previous prediction stands: the overwhelming majority of House members who supported the Massie/Lofgren/Holt amendment will be back for the 114th Congress.

Finally, I want to take a moment to respond to a recent post by law professor Steve Vladek. Vladek has repeatly accused libertarian-leaning Republicans of what he refers to as “libertarian hijacking” of certain national security issues, particularly surveillance reform. You can read his piece in full at the link above but here is the key section:

Instead, what strikes me as far more likely in the 114th Congress, especially if there is an open rift between the libertarian and centrist elements of the Republican caucus, is what I worried about last March–that national security policy will become increasingly prone to “libertarian hijacking,” where the wings align just long enough to (1) shift the terms of public debate to a contrived non-issue (e.g., using drones to kill Americans sitting peacefully at U.S. cafes); (2) extract some kind of wholly gratuitous concession from the government (e.g., no targeted killings of Americans peacefully sitting at U.S. cafes); and then (3) proclaim victory and depart the field without actually addressing the far harder question of U.S. policy (e.g., under what circumstances should targeted killings of terrorism suspects located overseas be authorized?). This was the precise result of the contretemps over the FY2012 National Defense Authorization Act (all of the attention focused on whether the statute authorized detention of U.S. citizens within the United States); and the “Stand-with-Rand” filibuster of John Brennan’s nomination to be CIA Director (targeted killings at domestic cafes).

Given the increase in both real and perceived power that Republicans in general–and libertarians in particular–will likely claim in the 114th Congress, libertarian hijacking seems a distinct possibility on a host of national security issues. Indeed, it may end up happening with surveillance reform. After all, it is entirely possible that libertarians will see the USA FREEDOM Act as the sum total of the surveillance reform that was necessary in response to the Snowden disclosures; while liberals, although decrying its inadequacies, will take the view that some reform is better than no reform. In the process, Congress will then accomplish nothing when it comes to (1) reform of oversight surveillance; (2) reform of the FISA Amendments Act; or (3) any effort to circumscribe the scope of collection under Executive Order 12,333. Instead, “surveillance reform” will amount to relatively modest changes to arguably the least invasive of the government’s surveillance authorities. And on topics unrelated to surveillance, it’s hard to see any better outlook for meaningful progress (whatever that is), absent some fundamental shift in the relationship between congressional Republicans and the White House.

So if we are to believe Vladek's argument, libertairan-leaning Republicans are simply striking a political pose when they offer amendments to annual defense spending bills to reign in NSA surveillance, as Justin Amash of Michigan did in 2013 with liberal Democrat John Conyers or as Tom Massie of Kentucky did with liberal Democrats Zoe Lofgren of California and my former boss, Rush Holt of New Jersey in June 2014. If that were true, why did the pro-Surveillance State House Republican and Democratic leadership work so hard to try to defeat those amendments? Becaue they knew none of the supporters–on either side–were engaged in a political stunt. It seems Vladek has a hard time believing that Members like Amash and Massie have core political values that they actually act on in the legislative process. I have no trouble believing it, because I worked with both men and their staffs on this very issue while I was on the Hill.

I also think that given the power of metadata to unmask the private lives, interests, and relationships of U.S. citizens when it is collected en mass by the federal government, it's disingenuous to describe Sec. 215 of the PATRIOT Act as the “least invasive” of the government's surveillance authorities. Ending the indiscriminate bulk collection of that data has rightly been the focus of privacy and civil liberties advocates inside and outside of government since Edward Snowden first revealed the abuses of the Sec. 215 program in 2013. The saving grace at the moment is the June 2015 expiration date for those authorities, and the very real political vice is now creates for Surveillance State proponents. In this fight, time is on the side reform advocates. May they use it well.



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