Sen. Rand Paul’s “no” vote effectively doomed Democrats’ attempt to curb a domestic surveillance program Tuesday, but the Kentucky Republican says he made the move in defense of liberty.
Paul’s onetime allies in the fight against government spying, however, say the senator got it wrong.
Following the vote, Paul’s office said his vote “led the charge against the Patriot Act extension,” a reference to the post-9/11 bill that expanded the government’s spying authority. Indeed, the bill up for consideration Tuesday, the USA Freedom Act, did contain two-year extensions for core sections of the Patriot Act, including a controversial provision that intelligence agencies have used to justify their bulk surveillance activities.
Those provisions are due to expire in 2015, which provides leverage Paul hopes to use to make bigger, bolder changes to the national security apparatus.
But the Freedom Act also made deep cuts to existing surveillance powers: Chiefly, the bill was designed to prohibit the government’s carte blanche access to U.S. phone metadata—the numbers and time stamps of phone calls but not their actual content.
Despite the bill’s reforms, Paul is arguing that he can get a better hand next year, with the Patriot Act deadline looming closer. The legislation’s proponents counter that by voting against the bill, Paul did a disservice to the cause, because Senate Republicans may be unwilling to budge much from their pro-NSA stance when they take over the chamber next year.
Moreover, Paul’s rationale may be further undercut by an apparent little-noticed loophole that, as the New York Times reported late Wednesday, would allow President Obama to continue the bulk records program indefinitely even if Congress fails to act.
“I told Senator Paul what I thought of it,” said Senate Judiciary Chairman Patrick Leahy, a Democrat and the bill’s chief author, when asked about Paul’s vote. “I’m one of the people that wants real reform, and you don’t get real reform by voting ‘no.’”
“Although we appreciate his shared enthusiasm for reining in the NSA, many in the privacy community are deeply disappointed by Senator Paul’s vote,” added Kevin Bankston, policy director of the Open Technology Institute. “By taking what he seemed to think was the strongest possible anti-surveillance stance, Senator Paul ironically ended up shooting the surveillance reform movement in the foot.”
With Paul’s opposition, the Freedom Act failed to clear a 60-vote threshold to advance, coming up just two votes short. Sen. Bill Nelson of Florida was the lone Democrat to vote no, though confusion remains about whether he intended to break ranks, or if he would have done so had his vote been the deciding one.
The other key vote, the bill’s backers say, was Paul. And everyone in the room knew it.
“He had his reasons,” said Sen. Dean Heller, one of the four Republicans to support the Freedom Act. “I’m not going to second-guess anybody’s vote on any bill, but I wish he had been with us.”
Paul’s opposition is especially puzzling, observers say, because Majority Leader Harry Reid had promised an open amendment process if the Freedom Act advanced. A frenzy of amendments was expected from both privacy and defense hawks, and Paul would have been able to offer his own addressing his Patriot Act concerns. That agreement shored up support from other vocal NSA critics, including Sens. Ron Wyden and Mark Udall, who worried that the measure may not have been strong enough.
Despite his apparent misgivings, Paul, a likely presidential contender in 2016, did not rise to speak during debate leading up the bill. He quietly watched from a chair near the middle of the chamber as members of his party, including Minority Leader Mitch McConnell and Sen. Marco Rubio, warned that reducing the NSA’s authority could aid terrorists around the world, including the Islamic State.
Some close to the bill who were unhappy with Paul’s vote suggested it may have been the product of cold political calculus. By voting no, Paul gets to remain in good standing with GOP leaders, including fellow Kentuckian McConnell, while preserving a reputation as a staunch surveillance reformer.
If bulk data collection is not fixed by 2016, Paul will be able to campaign on ending it entirely, and distance himself from Sen. Ted Cruz of Texas, also a likely presidential candidate, who crossed the aisle to vote for the Freedom Act.