Posted by on November 26, 2014 in Blog

“Fomenting fear stifles serious debate and constructive solutions … this nation deserves more than that,” stated Senator Patrick J. Leahy (D-VT) after the USA FREEDOM Act was voted down 58 to 42 in the Senate on November 18, 2014. The vote revealed a rare display of bipartisanship in what has typically been a partisan Congress. Unfortunately, this bipartisan apparition resulted in a significant setback for civil rights and liberties activists as well as opponents of the National Security Agency’s (NSA) surveillance practices.

Senate Majority Leader Mitch McConnell (R-KY) argued that under the USA FREEDOM Act the intelligence community’s ability to effectively protect our citizens from threats posed by terrorist groups like Islamic State in Iraq and the Levant (ISIL) would be limited. In a speech on the Senate floor before the vote, Senator McConnell contested, “this is the worst possible time to be tying our hands behind our backs.” Similarly, Senator John Cornyn (R-TX) stated that the USA FREEDOM Act “takes us back to a pre-9/11 lack of capacity to identify terrorists making telephone calls in the United States.”

Yet, Senator Leahy, one of the original writers of the USA FREEDOM Act, argued, “The bill contains key reforms to safeguard Americans’ privacy by prohibiting the indiscriminate collection of their data … the bill also ensures that the intelligence community has the tools it needs to keep our country safe.” Notable Republican supporters of the USA FREEDOM Act, include Senator Ted Cruz (TX), Senator Mike Lee (UT), and Senator Lisa Murkowski (AK)

The 2001 USA PATRIOT Act, which President Obama reauthorized in 2011, provided the government with the legal authority to institute practices that would increase surveillance on American citizens. Because the act will expire in June 2015, lawmakers must propose new legislation before the deadline. Analysts are unsure how the new Republican controlled Congress will tackle this critical issue in the next session. Critical advocates of the USA FREEDOM Act, such as Senator Mark Udall (D-CO) and Senator Mark Begich (D-AK), lost their seats during mid-term elections this year. Moreover, as demonstrated by this most recent vote, Republicans are not completely unified on the issue. The Arab American Institute (AAI) has been a longtime advocate of NSA reform. We have also highlighted the disparate impact NSA programs have had on the Arab American community. AAI believes that existing practices perpetuate profiling on the basis of race, ethnicity, religion, and national original, and fail to identify genuine threats to the homeland.

U.S. lawmakers are not alone in this particular dilemma of trying to strike a balance between ensuring national security and upholding civil liberties; countries such as the United Kingdom and Australia that are also deeply entrenched in the fight against ISIL are similarly struggling. Both countries have enacted a series of laws and policies aimed at bolstering national security, but have faced a great deal of criticism that these laws come at the expense of their citizens’ rights.

For example Great Britain announced its intention to introduce a law to Parliament which would force internet companies to monitor users; restrict the travel of suspects; and ban extremist speakers from public forums such as universities, prisons, and schools. Justifying the proposed legislation, Home Secretary Theresa May asserted, “We are engaged in a struggle that is fought on many fronts and in many forms … And the threat we face right now is perhaps greater than it ever has been – we must have the powers we need to defend ourselves.”

In Australia, lawmakers instituted legislation that provided the Australian Security Intelligence Organization the ability to broadly access computer networks; imposed a ten-year prison sentence on individuals who divulged details about state security operations; and banned Australians from visiting foreign areas that the government deemed as “declared areas”, namely areas where terrorist organizations operate. Unlike the U.S. or the U.K., Australia’s constitution does not include a bill of rights, which means it is practically impossible for citizens to challenge personal infringements of the government’s anti-terror laws.

Finding the delicate balance between guaranteeing the security of citizens while respecting their civil rights is a conundrum that multiple governments around the world are facing and attempting to address. Here in the U.S., the USA Freedom Act had the potential to remedy certain government abuses made under the pretense of safeguarding national security. Looking ahead, the 114th Congress must develop legislation aimed at protecting individual civil liberties, while promoting a national security system that can effectively protect citizens from both foreign and domestic terror threats. Perhaps most importantly, members of Congress must remember that this issue is not a zero-sum game. Lawmakers should not have to choose between upholding civil rights and liberties and safeguarding our national security.

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