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Bill failed by two votes to advance to the Senate floor, libertarian-leaning Senator complained bill didn't go far enough

Senator Randal Howard "Rand" Paul (R-Kentucky) on Tuesday cast one of two critical "No" votes that on the surface seem to scuttle a bill banning U.S. National Security Agency (NSA) spying on Americans' phone calls.  But the true story is far murkier.
 
I. The Rise of the Intelligence Defense Complex
 
The NSA currently collects metadata on 99 percent of calls placed in the U.S. -- information that includes who you called, the time, and the place the call was made from.  That information adds up to a massive dataset that can be used to track virtually every American's movements on a coarse scale without a warrant.  The NSA also reportedly records a large percentage of America's phone calls -- tens of millions a day, at least -- storing them at its massive data centers.
 
The NSA has admitted to Congress that employees have abused this spying in the past to spy on exes or commit other "illegal" actions, just some of the thousands of times a year that NSA agents admittedly break federal laws.  
 
Surveillance State
By its own accounting the NSA breaks the law thousands of times a year, yet its agents receive no legal punishments. [Image Source: Occupy]

But it insists that agents who break the law to spy on Americans shouldn't be punished as they meant well.  And it claims that the mass spying has no hidden special interest agenda, despite the fact that it's funneling billions in contracts to top lobbyists like Oracle Corp. (ORCL).
 
The NSA also claims it's not about dirty politics, despite the fact that the Obama administration's U.S. Central Intelligence Agency (CIA) has admitted to spying on Congress and despite the fact that the NSA more or less admitted to spying on Congress, as well.
 
II. Cha, Cha, Changes.... How the Freedom Act Pivoted Away From Its Original Intent
 
Some in Congress have proposed reining in the intelligence community's unchecked powers.
 
But upon closer inspection many of these anti-NSA efforts proved to actually further the agency's objectives.  Senator Dianne Feinstein's (D-Calif.) "FISA Improvements Act", for instance, would end bulk data collection in ally states (e.g. Germany), but would change the NSA's mission officially to spying on Americans.  That bill never made it past the early drafting stages.
 
By contrast Sens. Michael S. Lee (R-Utah) and Patrick Leahy's (D-Verm.) "USA Freedom Act of 2013" (S.1599) made it much farther.  It even received lukewarm praise from the Electronic Frontier Foundation (EFF) a top civil liberties group.  The EFF called it a "good start".  Google Inc. (GOOG), Microsoft Corp. (MSFT), Facebook Inc. (FB), and Apple, Inc. (AAPL) also backed it.
 
Sen. Leahy and Feinstein
Sen. Leahy (pictured: left) allowed his bill to be twisted in a reaffirmation of the PATRIOT Act.  In the end even rivals like Sen. Feinstein (D, Calif) (pictured: right), Rep. Peter King (R, New York), and President Obama voiced support for the plan. [Image Source: AP]

The bill passed the House in very watered down form under its original name (see: H.3361) with the vote dividing both parties.  A narrow majority of Republicans supported the bill while a narrow majority of Democrats opposed it.  But overall, the split in the House was relatively similar from each party.  The bill passed 303-121.  Notably U.S. Rep. Peter T. King (R-New York)  -- a vocal proponent of NSA spying, who proposed prosecuting journalists who wrote about the Snowden leaks -- voted in support of the bill.
 
In the Senate, meanwhile, the bill was also revised to carry many of the same pro-spying edits.  It was designated as S.2685, but still carried the same base name.  In its final form, it contained stipulations that would have:
 
Forced business to keep the kinds of phone records the NSA currently collects
Extended Section 215 of the 2001 USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act)
Ultimately allow the NSA to access all the same records, but force those costs onto the phone companies (who would likely pass them on to consumers).
 
Perhaps the most insidious part about the bill is that it might somewhat disguise mass spying as the PATRIOT Act orders against private parties would be requested in FISA court and be sealed under strict national security laws.  

PATRIOT Act surveillance
[Image Source: ACLU]

The FISA court doesn't have to even report direct details to Congress -- only statistics.  So where as the NSA's current actions are reported to Congress to some degree, the NSA could potentially under the bill perpetrate the exact same thing while not reporting to Congress.  In short, no one would hear about mass spying, as it would become illegal to talk about (if it was occurring), but it was highly likely to still hang around.
 
III. "Politics as Usual, Playing the Silly Game"
 
Nonetheless there was a spirited debate from both sides that appeared to take the bill at a more naive level -- or at least feign that perspective.  Trying to rally support to bring the bill on the floor, Senator Leahy remarked:
 
Our bill protects Americans.  It ends indiscriminate data collection, but keeps the tools our intelligence community needs to protect the nation.
 
Senator Marco Antonio Rubio (R, Flor.) countered:
 
God forbid tomorrow morning we wake up to the news that a member of ISIL is in the United States.  We can disrupt that cell, before they can carry out a horrifying attack that kills hundreds of people.
 
Some seemed to acknowledge the reality -- that spying on millions of Americans would happen with or without the bill in a roundabout way saying the bill wouldn't "detract from... security" -- referencing blanket terms for mass spying in the U.S.  

Commented Sen. Richard Blumenthal (D-Conn.):
 
This bill advances the cause of safeguarding our nation, without in any way detracting from our security.  The founding fathers would have been shocked, if they had heard of warrants being issued by a secret court, making secret law.
 
But ironically, the bill he supported extended such secret warrants.  Also telling was the fact that both the Obama administration -- which pleaded with the FISA court to expand NSA spying authority in 2011 -- actually supported the bill.  

Obama smirk
President Barack Obama (D) and Sen. Ted Cruz (R) gave the new version of the bill their blessing.
[Image Source: AP]

Among its other backers included Sen. Feinstein, who vigorously opposed the original bill.  Sen. Feinstein was relatively forthright, stating:
 
If we didn't pass the House bill, there were members that wanted to end the whole program.  I do not want to end the program. I'm prepared to make the compromise, which is that the metadata will be kept by the telecoms.
 
Another strange bedfellow who became a vocal proponent of the revised bill was Sen. Rafael Edward "Ted" Cruz (R, Tex.).
 
IV. In the End, It Was Much Ado About Nothing
 
With the support of Republican Senator Cruz, it appeared the bill might get the 60 votes needed to advance it to the floor.  But ultimate, Sen. Paul's vote was one of a couple swing votes to block the proposal. He stated that his no vote was because he felt the bill did not go far enough.  He didn't want the Obama administration or Sen. Feinstein's pro-spying compromise.
 
The final vote was 58-42.
 
This vote appeared to be largely an instance of Congress spinning its wheels, putting forth a proposal that would achieve almost identical ends (mass spying on hundreds of millions of Americans) whether it passed or failed.  That duality and the bill's confusing language led some members of Congress to seem generally confused by the bill's true nature -- or at least put up a good job acting like they were.
 
Thus the bill died, partially via the hands of Sen. Rand Paul -- the first member of Congress to file suit against the Obama administration on the issue of mass spying.  The bill's death will be interpreted correctly as much ado about nothing by some, while others will inevitably buy into the confusion and misunderstand what this rejection truly means.

Senator Rand Paul
Senator Rand Paul voted against the bill for clear reasons -- he viewed it as a renewal of the PATRIOT Act.
[Image Source: The NYT]

Senator Rand Paul states:

In the aftermath of the Sept. 11 terrorist attacks, Americans were eager to catch and punish the terrorists who attacked us. I, like most Americans, demanded justice. But one common misconception is that the Patriot Act applies only to foreigners—when in reality, the Patriot Act was instituted precisely to widen the surveillance laws to include U.S. citizens.

As Benjamin Franklin put it, ‘those who trade their liberty for security may wind up with neither.’ Today’s vote to oppose further consideration of the Patriot Act extension proves that we are one step closer to restoring civil liberties in America.

But his comment ignores the painful reality that Congress is likely to renew the PATRIOT Act anyways, before it expires in 2015 -- much as it did in 2006.  And until that renewal vote, the PATRIOT Act powers of the NSA and other agencies remain very much in effect.
 
At the end of the day had the bill passed virtually every American would likely be spied on under general warrants from the FISA court.  With its failure virtually every American will still be getting spied on, but the NSA will be doing that spying first hand and be footing the bill.  That's politics for you.
 
Rent to Damn High
"This is politics as usual, playing the silly game." -- Jimmy McMillan [Image Source: AP]

Or as New York City mayoral candidate Jimmy McMillan once said, "This is politics as usual, playing the silly game, and this is not gonna happen."

Sources: Senate [vote record], Ars Technica, The New York Times, Sen. Rand Paul [press release]





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