The Patriot Act in policy and the presidential campaign

Recent developments have all but guaranteed the demise of significant programs of the USA Patriot Act. The history of the act is well-documented, and the sprint to the June 1 deadline has been the subject of front-page news, commentary and presidential election hopes. Many politicians have expressed why they support the renewal of Section 215, the controversial section that the executive branch has interpreted to allow unlimited storage of “metadata.” Other politicians have opined about supposed civil liberties violations due to the government’s storage of this data. Pundits, too, have expressed, concern, support or even indifference about the National Security Agency’s (NSA) metadata collection and storage.

{mosads}The failure of Senate Majority Leader Mitch McConnell (R-Ky.) to get a vote on the renewal was seen as a stain on his leadership. Recent events suggest that compromise is afoot in the Senate, which may lead the Senate to pass the USA Freedom Act, in which the data storage is dependent on private cell phone carriers.

Despite what some commentators suggest, the likely demise of Section 215 is of major importance, for at least two reasons. First, failure to renew Section 215 would be the most significant domestic retooling of intelligence since 9/11. As Benjamin Wittes has argued, this may be a precursor to the renewal efforts of Section 702 of the Patriot Act, which would have much larger impact on the national security efforts than does the (publicly known) impact of Section 215. According to Wittes, “[l]etting 215 expire by default, rather than by decision, will send a strong message that the fabric of U.S. intelligence law is not stable and may be altered as a consequence of paralysis and gridlock, rather than as a consequence of deliberation and political leadership.”

It also illustrates congressional willingness to reassert itself into the public debate over the government’s security policy. The widely noted bipartisan support of the House’s efforts to pass the USA Freedom Act as a counter to Patriot Act, and the support offered Sen. Rand Paul’s (R-Ky.) not-quite-a-filibuster to stall Senate efforts at renewal of 215 prior to a weeklong recess, are indicative of the national fears of civil liberty violations. The fact that this public view exists, even on the heels of the Boston Marathon bombing and trial and the rise of the Islamic State in Iraq and Syria (ISIS), portends a potential end to the Patriot Act as a whole, and a wholescale rethinking of counterterror policy.

Second, this debate sets up clear divisions among several GOP presidential hopefuls and suggests potential winners, at least in this policy space. Paul is clearly willing to stand on the side of Patriot Act repeal. Sen. Ted Cruz (Texas), in offering support for the USA Freedom Act, is taking much more of a middle ground. And Sens. Marco Rubio (Fla.) and the likely to be running Lindsey Graham (S.C.) are taking the hardline position of full support for renewal. If the 338-88 House vote on the USA Freedom Act as Section 215’s successor is any indication, it appears that Rubio and Graham have already become outliers in national security policy. For two presidential hopefuls who are hanging their hats on their foreign policy laurels, their support of the Section 215 renewal may signal an early end to their candidacies.

In short, the Section 215 renewal debate serves as a microcosm view in the near future of national security debate. Because of the widely held view that the Patriot Act has led to civil liberty violations, whether or not the Senate accepts the House USA Freedom Act, there appears to be a major shift in surveillance and counterterror policies on the horizon. And, it appears that Congress is once again willing to insert itself into the debate and creation of these policies. Finally, there is a strong possibility that the 2016 Republican presidential nominee will emerge from the field based on foreign policy and national security policy positions. And the field may have narrowed considerably already.

Gibson is an associate professor of political science at Westminster College in Missouri and a National Security Network (NSN) fellow. The views expressed here are not necessarily the views of NSN.