The National Security Agency’s power to collect Americans’ phone records is likely to expire with the Senate paralyzed over what to do about the Patriot Act.
The Senate has left Washington for a weeklong vacation after an early morning session Saturday in which Senators couldn’t agree on what to do about the law.
With the provision used to justify the mass collection of phone records expiring at the end of the month, and the House also on vacation, there appears little chance to prevent at least a temporary lapse in the NSA’s spying authority. That’s a victory for Sen. Rand Paul, R-Ky, who fought to block the Patriot Act renewal.
The Senate voted in the pre-dawn hours Saturday against a House-passed bill that would have changed the bulk phone record program while renewing less controversial provisions of the Patriot Act.
That bill, under which the records would be kept by the phone companies instead of the government, needed 60 votes to pass and fell short with 57 senators in favor and 42 opposed.
The Senate next rejected a bill by Majority Leader Mitch McConnell, R-Ky., that would have extended the NSA’s currently spying powers for two months. That vote was 45 to 54, a margin that indicated even less appetite among the senators for an extension of the controversial phone records collection program.
McConnell then repeatedly asked senators to allow a shorter extension – even as short as one day – but Paul and his allies repeatedly objected and blocked the proposals.
A frustrated McConnell then told senators to go home for their scheduled Memorial Day break. But he ordered them back a day early, May 31, just hours before the surveillance powers expires at midnight. It’s not clear what’s going to happen between now and then in order to break the logjam, though, and the House isn’t scheduled to return from its break until June 1, so unless something dramatic happens the spying powers will lapse at least temporarily.
Paul, on the Senate floor Saturday, called it a momentous debate and said “our forefathers would be aghast,” at the bulk collection of American’s phone records.
Paul is running for the Republican nomination for president and his opposition to the NSA’s domestic surveillance is a centerpiece of his campaign.
Paul launched a 10-and-half hour speech against the Patriot Act renewal earlier this week, describing it as “the most unpatriotic of acts,” and his campaign has been sending out fundraising appeals highlighting his actions on the issue and calling for potential donors to “Stand with Rand.”
“The Senate will return one week from Sunday. With your help we can end illegal NSA spying once and for all,” Paul tweeted early Saturday morning.
His position puts him at sharp odds with his fellow Kentucky Republican McConnell, who calls the NSA data collection important for national security.
“We need to recognize that terrorist tactics and the nature of the threat have changed, and that at a moment of elevated threat it would be a mistake to take from our intelligence community any of the valuable tolls needed to build a complete picture of terrorist networks,” McConnell said on the Senate floor.
The White House has been pushing the Senate hard to pass the House-passed bill.
Section 215, used to justify the phone data collection, isn’t the only provision that will expire on June 1. So will the “lone wolf” provision meant for spying on targets not directly connected to terrorist cells, as well as a provision that lets the government use roving wiretaps to track suspects who switch phones or locations. After the powers expire they can still be used for existing investigations, the Justice Department said, but not new ones.
White House Press Secretary Josh Earnest told reporters Friday that “there is no Plan B” if Congress doesn’t act before the deadline.
“The fact is we’ve got people in the United States Senate right now who are playing chicken with this,” Earnest said. “And to play chicken with that is grossly irresponsible.
Senate Intelligence Committee Chairman Richard Burr, R-N.C., is proposing a bill that he calls a compromise. It’s similar to the House-passed billed, known as the USA Freedom Act, but has a two- year transition instead of six months before the phone companies hold on to the data instead of the government.
“It’s clear that the USA Freedom Act doesn’t protect our national security as well as it should, so I’m providing a framework to plug the holes in the bill,” Burr said.
But House members such as former judiciary chairman Jim Sensenbrenner dismissed Burr’s effort.
“Senator Burr’s proposal to plug the so-called ‘holes’ in the USA Freedom Act is dead on arrival in the House,” Sensenbrenner, R-Wis., said in a written statement. “His bill is not stronger on national security, it is just weaker on civil liberties.”
Complicating the debate is an appeals court ruling this month that the mass collection of phone records is illegal because it wasn’t properly authorized under Section 215 of the Patriot Act. The court let the program continue temporarily, effectively giving Congress a chance to rewrite the surveillance law.