Americans need a champion for privacy rights

As the race for 2016 begins to take shape, it’s a testament to the staying power of the U.S. security state that not a single major presidential contender is strongly posturing against the countless assaults on privacy and civil liberties Americans have suffered since 9/11.

So far, we’ve heard serious talk about reforming National Security Agency surveillance programs from only two of the Republican candidates gunning for the White House. And with Hillary Clinton’s long-expected entry into the race this week, Democrats still aren’t saying much of anything.

It seems like a missed opportunity, given that surveillance has been an oddly bipartisan issue in Congress. The NSA revelations pitted a strange alliance of tea partyers and civil libertarians against surveillance state loyalists such as Sen. Dianne Feinstein, D-Calif., who provide unquestioning support for the powerful U.S. intelligence community. And yet Senate Republicans last year shot down the only serious legislative attempt at reform, the USA Freedom Act.

Where does Clinton stand? So far, her half-baked answers on domestic NSA surveillance have avoided taking any meaningful position.

Asked by Fox News whether she thought warrantless spying on Americans violates the Constitution, she responded that there is “a really difficult balancing act” between privacy and security and that “we have to make some changes in order to secure that privacy.” In a more recent interview in Silicon Valley, she punted again, offering only that the NSA needs to be more transparent. “I want us to come to a better balance,” she said, deliberately avoiding “saying it should be this or that.”

But the specifics of that balance matter. It’s the difference between restraining intelligence agencies and condoning the status quo of mass surveillance for decades to come, between ending the indiscriminate collection of Americans’ data and simply adding another flimsy layer of bureaucracy that the NSA can easily circumvent.

Unlike then-Sen. Barack Obama, when Clinton was a senator, she voted against the 2008 FISA Amendments Act, a pivotal bill that authorized the now infamous PRISM program and gave retroactive legal immunity to telecommunications companies that participated in secret domestic surveillance programs under George W. Bush. But she was secretary of state just as the Obama administration began its unprecedented war on whistleblowers, which has charged three times as many people under the draconian Espionage Act than all previous administrations combined. That list includes Thomas Drake and William Binney, two former veteran NSA employees whose lives were destroyed after raising the alarm about domestic surveillance before Edward Snowden ever did.

More important, Clinton voted for the Patriot Act, a post-9/11 surveillance law so pernicious that even its author, Rep. Jim Sensenbrenner, R-Wis., now vehemently opposes it. Thanks to Snowden, we now know that the law’s most grotesque provision, Section 215, secretly authorized the NSA to collect the phone records of every American under a twisted legal interpretation approved by clandestine intelligence courts.

Or, to put it in terms of John Oliver’s surveillance rubric: Section 215 is what allows the NSA to see who you’re sexting, including when and how often — though not the messages and pictures themselves. (It can also reveal whether you’re calling a drug addiction hotline, an abortion clinic or a secret lover.)

Section 215 is set to expire in June, and it could serve as a litmus test for where presidential hopefuls stand on surveillance. Repeatedly, the bulk collection of Americans’ phone records under 215 has been shown to be overly broad and ineffective at fighting terrorism. Even the NSA debated internally whether the program’s value justifies the damage it has done to civil liberties. If any candidates want to make a strong statement against mass surveillance, making sure Section 215 stays dead would be the way to do it. If they do the opposite, you can be sure they’ll be singing the NSA’s praises all the way to the presidential primaries.

Last year Obama pushed cosmetic changes to NSA surveillance while ignoring most of the recommendations of his own expert panel, which concluded that the 215 program should end because it is illegal, is probably unconstitutional and has not once helped stop a terrorist attack. It underscored just how much Obama has retreated from the strong stance he took against warrantless domestic surveillance while on the campaign trail.

Candidates would be wise not to follow Obama’s example. Despite suggestions to the contrary, Americans do care about privacy: A Pew poll last year showed that a solid majority of Americans oppose the government’s mass collection of domestic phone and Internet data. A more recent poll revealed that 61 percent of Americans who have heard about the surveillance programs are now less confident that they serve the public interest. Republicans are more likely to be skeptical about surveillance than Democrats, by a wide margin: 70 percent and 55 percent, respectively.

It suggests that if Democrats don’t act, surveillance reform might become a partisan issue in 2016. Right now, Kentucky Republican Sen. Rand Paul appears to be the strongest choice for a voter seeking a candidate with an aggressive public stance against the NSA’s mass collection of domestic data. (His other views, such as his repulsive attitude toward women and incongruously nonlibertarian position on gay marriage, are a different story.)

“The president created this vast dragnet by executive order. And as president, on Day One I will immediately end this unconstitutional surveillance,” Paul promised on Tuesday in his home state. But Paul was one of the Republicans who sabotaged Congress’ best attempt at NSA reform under the USA Freedom Act, arguing that the bill didn’t go far enough. Declared candidate Sen. Ted Cruz, R-Texas, a surveillance reform proponent who supported the bill, slammed Paul on his vote. Sen. Marco Rubio, R-Fla., who announced his candidacy earlier this week, has taken the opposite position, saying that mass surveillance should be extended indefinitely.

Democrats, meanwhile, are left without a real champion on privacy and civil liberties. Sen. Bernie Sanders, I-Vt., has toyed with the idea of a presidential run and has a strong record pushing for surveillance reform since the Snowden revelations. Progressive favorite Sen. Elizabeth Warren, D-Mass., has also challenged the NSA programs, to a lesser degree. But with Clinton looking to overshadow any other candidates waiting in the wings, it may be up to her to rise to the challenge.

No matter how it plays out, having surveillance reformers on both sides will be essential in this race if we’re going to decide how to curb the nation’s post-9/11 security excesses. Americans care about where their candidates stand on privacy — and they will be listening.