A recent House Judiciary Committee markup session for the USA Freedom Act provided an inside look at political jockeying going on behind the scenes as Congress tries to hammer out some kind of surveillance reform.

It wasn’t encouraging for privacy advocates. In fact, it provides yet more proof that Congress will not ever stop mass surveillance.

With section 215 of the Patriot Act set to sunset in June, a sense of urgency has bubbled up around the issue of surveillance reform in Washington D.C. Senate Majority Leader Mitch McConnell wants to extend the Patriot Act provisions that authorize bulk collection of telephone metadata. Some privacy advocates and some members of Congress want to let the provisions expire altogether. Others see the USA Freedom Act fix as the only chance to usher in some reforms – however meager.

The bill purports to end bulk collection of business records under foreign intelligence authorities. It remains up for debate as to whether the legislation would actually succeed in this aim. Even if it does, the bill does not address other avenues of spying, including Executive Order 12333 and Section 702 of the FISA Amendments Act.

Even with a sunset of the Patriot Act provisions or passage of the USA Freedom Act, bulk spying on your phone records would almost certainly continue.

During the committee markup session, Rep. Ted Poe (R-Texas) proposed an amendment to address the most controversial aspect of Section 702, so-called “back-door searches.” This allows the government to search American’s emails and phone calls collected by the NSA while targeting foreigners without a warrant. Poe’s amendment would have required a warrant for these back-door searches.

The vast majority of committee members supported the idea. But it didn’t pass because of politics. JustSecurity.org reported on the hearing and described the scene.

It was clear from their comments that a majority of committee members supported the goal of the amendment. Indeed, no member spoke against it on substantive grounds. But Committee Chair Bob Goodlatte (R-Va.) explained that the bill represents a fragile compromise — primarily with members of the House Intelligence Committee (HPSCI) — and that House leadership had made clear the bill would not get a floor vote if the Judiciary Committee amended it. The members were faced with a choice: acknowledge the terms set by House leadership and vote against an amendment designed to restore critical Fourth Amendment protections for Americans, or reject those terms and possibly derail surveillance reform altogether.

According to Just Security, many on the committee characterized the Poe amendment as an example of “the perfect being the enemy of the good.”

Poe was reportedly frustrated. As Just Security reports, he implored committee members not to allow House leadership to dictated their vote

Poe observed dryly that the Committee was not simply delaying the building of a bridge. It was delaying vital Fourth Amendment protections for Americans. He put the question simply: do politics trump the Constitution, or does the Constitution trump politics? He urged fellow committee members not to let leadership’s threats dictate their vote. He said they should support the amendment and let the political chips fall where they may.

Ultimately, the amendment failed. Many advocates of reform reportedly breathed a sigh of relief, knowing that the amendment would have effectively killed the bill. Without it, the USA Freedom Act has a decent shot at moving forward.

Poe wasn’t thrilled.

“Everyone who’s spoken against it is actually for the amendment. It’s a sad day for America,” he said.

The politicking raises a huge question: what good is reform that can’t ultimately stop violations of the Constitution and of your privacy rights?

And it proves something I’ve said over and over again – we cannot depend on Congress to end mass spying. Even when there is a way, there is no will.

The committee markup session demonstrated this sad fact.

Even if the USA Freedom Act passes the House, it remains highly questionable if it can get through the Senate. Sen. McConnell has made it clear he wants to continue spying on you and he runs the show in the upper chamber. And even if by some miracle USA Freedom passes both houses of Congress and Pres. Obama signs it, spying will continue unabated under other authorities.

It’s been 40 years since Sen. Frank Church declared that the American surveillance apparatus created the potential for “total tyranny.” Congress hasn’t done anything about it yet, and events on the Hill make it clear it won’t in the future.

Congress may tinker around the edges and then declare a grand victory for privacy. In the meantime, the NSA will go right on spying on you and everybody else in America.

The time has come to focus on new strategies that bypass the political class on Capitol Hill. OffNow has developed that alternative path forward – utilize the power of state governments to thwart the surveillance state.

Read more about our plan HERE.

Mike Maharrey

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