When the clock strikes 12:01 a.m. on Sunday, the NSA will halt its sweeping collection of Americans’ phone records, in a major victory for civil libertarians who have pushed for the reforms since the program was first revealed by Edward Snowden more than two years ago.
The reform has new meaning now, in the wake of the terror attacks in Paris that left 130 people dead.
National security hawks insist that ending the program will make America less safe by depriving intelligence agents of the ability of connect the dots between suspected terrorists precisely when fears about the Islamic State in Iraq and Syria (ISIS) are peaking.
The divide is coming into clear focus on the campaign trail, and promises to be a point of contention so long as public fears about terrorism remain high.
“I believe in the Constitution. I’ve spent my whole life fighting to defend the Bill of Rights and the Constitution, and the federal government has no right to be seizing, collecting and holding the phone metadata of hundreds of millions of law-abiding citizens,” Sen. Ted Cruz (R-Texas) said at a tele-forum hosted by the Washington Examiner this month.
Cruz, whose presidential campaign has risen to the upper ranks in the all-important first caucus state of Iowa, was an early supporter of the bill to end the NSA’s phone records program, called the USA Freedom Act, which passed in June.
The program has collected metadata about people’s phone calls, including the numbers involved in the call, when it took place and how long it lasted — but not the content of their conversations. Privacy advocates have said that that information alone can nonetheless be revealing, noting that a call to an abortion provider, a bankruptcy lawyer or a therapy group can be nearly as telling as the details of what was discussed.
Under the new system, the NSA will have to get a narrow set of records from private phone companies after getting court approval that it has a reasonable suspicion the target is connected to terrorism.
“I am very proud of that legislation,” Cruz said. “It gives us the tools to stop bad guys while protecting our civil liberties at the same tine.”
Yet the stance is proving to be a vulnerability amid rising concerns about terrorism following the Paris attacks, which are believed to have been coordinated by ISIS. Critics say the extra steps required will be too cumbersome for the NSA during a moment of crisis.
This week, a conservative group with ties to the billionaire Koch brothers unveiled a 30-second TV ad that will run in Iowa claiming Cruz “voted to weaken national security” and “joined Obama” by supporting the reform bill.
Sen. Marco Rubio (R-Fla.), who is seen as Cruz’s main competition aside from the “outsider” candidates Donald Trump and Ben Carson, has been especially critical of Cruz’s vote.
“There are members of the Republican Party — that includes Sen. Cruz and Sen. Paul, who have argued that somehow the government is out there spying on everybody, so we need to gut these programs,” Rubio said in an interview with Fox News this week.
“That isn’t true. … If you have voted to harm those programs and undermine those programs then we need to have a debate about that, because it is a very different view of what the government’s role should be in our national security.”
Republican presidential candidate and Kentucky Sen. Rand Paul is the Senate’s most vocal libertarian and staged a 10-hour filibuster over the NSA program in May. He also forced the brief expiration of the portion of the Patriot Act used to justify the NSA’s phone records program — a move that critics derided as grandstanding.
Yet he voted against the USA Freedom Act this summer, claiming it did not go far enough.
Ahead of Sunday, top Senate Republicans, including Rubio, Sen. John McCain (R-Ariz.) and Majority Leader Mitch McConnell (R-Ky.), have signed on to legislation from Sen. Tom Cotton (R-Ark.) to delay the NSA changes for more than a year.
Sunday’s reforms were aided by a May ruling by a federal appeals court that declared the program illegal just days before a key legal deadline. In its ruling, a three-judge panel on the Second Circuit Court of Appeals said the NSA program “exceeds the scope of what Congress has authorized” in the Patriot Act.
That ruling was more restrained than one from a lower court judge, who called the program “almost Orwellian” in 2013 and said in November that it “likely violates the Constitution.”
Other judges, however, have declined to similarly condemn the program.
Before the NSA reform bill was passed in June, both Director of National Intelligence James Clapper and then-Attorney General Eric Holder called it a “reasonable compromise” that “preserves essential intelligence community capabilities.”
“It’s an important improvement in the law and it will make it more likely that the NSA will collect records of communications of suspicious people, instead of records of communications of everyone else,” said Greg Nojeim, the director of the freedom, security and technology project at the Center for Democracy and Technology, which supported the bill.
Indeed, the old program has only been conclusively responsible for one arrest and conviction in its 14 years of existence: a San Diego cab driver who was convicted in 2013 of sending $8,500 back home to Somalia to help the terror group al-Shabaab — not an active terrorist plot. Critics say that should be proof of the program’s ineffectiveness.
Yet defenders insist that the program contributes to a broader “mosaic” of understanding that can help contribute to intelligence about a terror network.
“It’s clear that the metadata program, while it didn’t lead to the stopping of a particular operation, it’s just one among many tools that you need to have a whole picture put together,” said Gary Schmitt, a former Senate Intelligence Committee staffer who is now the co-director of the conservative American Enterprise Institute’s center for security studies.
“Is it absolutely critical? Probably not. But is it important? Probably yes.”