The Future of NSA Reform, GOP 2016 Edition

Rand Paul and Ted Cruz are not going to just talk about government spying during their presidential campaigns. The tea party senators are going to force the other Republican White House hopefuls to talk about it, too.

That's because few policy zones divide the GOP more than the National Security Agency's mass surveillance programs. And on crowded primary debate stages, every candidate will be jockeying with the rest of the field to separate themselves from the rest of the pack.

While Paul wants to dismantle NSA spying and Cruz wants to reform it, former Florida Gov. Jeb Bush and New Jersey Gov. Chris Christie are intent to preserve the agency's powerful capabilities. Other likely contenders, ranging from Wisconsin Gov. Scott Walker to Dr. Ben Carson, have largely ducked giving specifics prescriptions on the NSA, a National Journal analysis has found.

Paul and Cruz could both stand out by frequently knocking their opponents for defending the NSA—and polling data suggests the tactic may be red meat for Republican voters. A Pew Research survey released in March found that 70 percent of Republicans and those leaning Republican said they were losing confidence that the NSA's surveillance programs benefitted the public interest. (Just 55 percent of Democrats and those leaning Democratic felt the same way.)

The most pronounced fault line among the candidates is whether the NSA should continue its bulk collection of Americans' call records—the first and likely most controversial program exposed by the Edward Snowden disclosures. Paul wants to end it completely; Cruz was one of just four Republicans to cross the aisle and support a Democrat-backed NSA reform bill, which narrowly failed to advance. Paul voted down the measure on grounds it didn't go far enough.

(Related: Here’s Why the NSA Won’t Need Congress’ Permission To Continue Spying)

Bush, Christie, and Sens. Marco Rubio and Lindsey Graham all emphatically support the government's dragnet collection of phone metadata—the numbers, timestamps, and duration of a call but not its actual content. Rubio has offered perhaps the most full-throated defense of the program of anyone, however, saying that it should not just be preserved but that Congress should remove any sunsets and make the spying authority permanent.

The trick for each of them, should they run for president, will be portraying Paul and Cruz as weak on national security without offending the libertarian wing of the party.

Other hopefuls will have to decide more firmly what side of the debate they stand on—or try to elide specifics in an attempt to make the NSA a non-issue for their campaign. Nearly two years after the Snowden leaks began, many expected candidates remain opaque about mass surveillance.

Louisiana Gov. Bobby Jindal also supports mass surveillance of U.S. calls, though he has seldom spoken publicly about the NSA. And former Pennsylvania Sen. Rick Santorum has said the program poses no threat to privacy, but couched that declaration by acknowledging some of the information Snowden exposed "should have been made public."

What about Walker? As he has on other policy issues, Walker has largely punted when asked about the NSA, while issuing platitudes about the need to balance civil liberties and security. He has said he is closer to Christie than Paul on these issues, however. Former Texas Gov. Rick Perry has straddled the fence, saying some surveillance is crucial to national security but admitting some shock by the Snowden revelations. "You would expect to hear those stories coming out of China," Perry told reporters in 2013.

Yet nearly two years after the Snowden leaks began, other expected candidates remain vague about mass surveillance. Former Arkansas Gov. Mike Huckabee has repeatedly taken to Facebook to chide the NSA and blast President Obama for not disclosing more details publicly,

(Read more: Support for Government Surveillance Could ImperilGOP’s 2016 Hopefuls)

But criticizing Obama alone won't take a Republican very far, as no matter where they stand on surveillance, all the candidates likely will blame the Obama administration for the public's overall skepticism of the NSA's intelligence-gathering capabilities.

How Paul and Cruz Will Spar Over the Anti-NSA Voter

One of the most interesting battles over NSA reform in the GOP primary will be how Paul and Cruz decide to go after each other. On the surface, the two appear closely aligned, with Paul slightly more antagonistic toward mass surveillance. Dig deeper, however, and both policy and tactical differences emerges.

Cruz can reasonably argue that he is the only Republican in the field that actually took steps to overhaul the NSA. The Texas freshman was one of just four Republicans who crossed the aisle and backed the USA Freedom Act, a comprehensive NSA reform package authored by Sen. Patrick Leahy, a Vermont Democrat. The measure fell just two votes short of advancing, as most Republicans, including Rubio, warned that it could help terrorists kill Americans.

But Paul also voted against the measure, saying at the time he could support no measure that reauthorized the Patriot Act. The Freedom Act did renew three sections of the Patriot Act, including Section 215, where the NSA derives much of its surveillance authority, but also ushered in several transparency and oversight reforms. It also would have stopped the government's bulk collection of phone metadata and instead relied on phone companies to keep that data. Government officials would be able to request it as needed after obtaining judicial approval, except in some emergency cases.

By casting a crucial no vote, Paul—who also has filed a class-action lawsuit against the NSA—says he is the only presidential contender that truly wants to end mass spying. But his vote agitated many civil-liberties advocates, who were counting on his support. His tactics were seen by some as especially foolhardy, as the Republican takeover of the Senate has made surveillance reform a tougher sell.

Cruz could pounce on Paul's vote, just as Paul may try to cast doubt on Cruz's anti-NSA bona fides. Whatever the case, the pair will have another chance to strategically weigh in on NSA reform, as Congress must act in some fashion by June 1, when Section 215 is due to sunset. If the two align behind a reform bill or a plot to let the surveillance authority expire, the differences between them will quickly evaporate. But if they again pursue opposing strategies, the differences will become more pronounced.