A beautiful sunset (provision) for NSA surveillance

Early last Saturday morning, the Senate adjourned for its Memorial Day recess in some disarray. The chamber had just fallen three votes short of the 60-vote threshold required to proceed to debate on the USA Freedom Act, which had passed the House 10 days earlier. The act would have amended the Patriot Act to forbid the National Security Agency (NSA) from collecting metadata about Americans’ phone calls, but it would have allowed the agency to continue to access that same information in the possession of private telecommunications companies.

{mosads}The Senate’s failure to pass the bill might sound like a defeat for civil liberties. After all, the bill was meant to rein in a program that many found objectionable. And, indeed, it is generally very difficult to pass laws taking power away from government agencies, because those agencies will usually have powerful defenders in at least one of the House, Senate or presidency.

But this time was different, because of one simple but crucial, feature of the Patriot Act: a built-in expiration date, also known as a sunset provision. The USA Freedom Act did not simply curtail the NSA’s surveillance authority; it also reauthorized that authority, which is due to expire on June 1. This explains why Senate Majority Leader Mitch McConnell (R-Ky.) was so desperate to pass something: After the Freedom Act failed, he tried to get through a two-month extension of the NSA’s authority in its current state. That failed by an even bigger margin. He then attempted to get unanimous consent agreements for ever-shorter extensions, down even to one day, but Sens. Rand Paul (R-Ky.), Ron Wyden (D-Ore.) and Martin Heinrich (D-N.M.) objected. McConnell has vowed to try again when the Senate reconvenes on Sunday, May 31, hours before the NSA authority is set to expire. The NSA has reportedly already begun winding down the program.

The sunset provision turns out to be hugely important. Without it, the baseline for any future legislation would have been expansive NSA power, and any attempt to move away from this baseline — that is, any NSA reform bill — would have faced very high hurdles. But the sunset provision reset the baseline. Now the status quo, as of June 1, will be an absence of NSA metadata surveillance power. This new baseline forced the NSA’s defenders to come to the table in order to salvage as much of their surveillance powers as they could. And once they’re at the table, critics of the program have a chance to extract real concessions.

This does not mean, of course, that the critics will get everything they want. All but one of the Senate votes against the House measure came from Republicans, many of whom did not like the limitations that it placed on the NSA. But their subsequent inability to pass a clean extension of the NSA’s authority meant that the power shifted to civil libertarians like Paul, Wyden and Heinrich. Inaction — the default position — now favors their preferred outcome. Even if something is eventually passed restoring some of the lapsing authority, it will be something that takes significant account of the concerns of the NSA’s critics, and those critics will have the sunset provision to thank for it.

This series of events holds lessons beyond the context of the Patriot Act or NSA surveillance. Laws passed in the crucible of emergencies often long outlast the specific circumstances that gave rise to them. Think of the Authorizations for the Use of Military Force (AUMF) in the aftermath of 9/11 and in the run-up to the invasion of Iraq, which are still being used as legal authority to fight the Islamic State in Iraq and Syria (ISIS) today. What if those AUMFs had contained a sunset provision? They might well have been extended, just as the Patriot Act repeatedly has. But those extensions would have required that the administration go to Congress and explain why the authority was still necessary. It would not simply have continued on as a matter of course.

For precisely that reason, presidents tend not to like sunset provisions. The George W. Bush administration reportedly opposed the inclusion of one in the Patriot Act. But Congress was wise to include it, anyway, and it would be wise to make more widespread use of the practice. It wouldn’t mean that authority for executive action would invariably expire, but it would require periodic reexamination and renegotiation of some of our most important and controversial policies.

Chafetz is professor of law at Cornell Law School. His second book, Congress’s Constitution, will be published by Yale University Press.