Did Rand Paul’s NSA Vote Fight Government Spying, or Protect It?

The libertarian says his opposition to a Senate bill protected Americans’ privacy. Privacy advocates disagree.

Dustin Volz
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Dustin Volz
Nov. 20, 2014, midnight

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.

Sarah Mimms contributed to this article.
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