The Senate is preparing for a last-minute attempt to save expiring portions of the Patriot Act, but it may already be too late.
The Obama administration is already starting to end the National Security Agency’s (NSA) bulk collection of Americans’ phone records, after legislative inaction forced the upper chamber to kick the can until next Sunday — mere hours before the laws expire.
Without congressional approval, the White House failed to ask the secretive Federal Intelligence Surveillance Court to renew the program by a Friday deadline.
“We've said for the past several days that the wind-down process would need to begin yesterday if there was no legislative agreement,” one administration official told The Hill early on Saturday morning. “That process has begun.”
The administration’s decision means that the post-Sept. 11 spying program, which was revealed in 2013 by former NSA contractor Edward Snowden, will come to an end — at least temporarily.
It’s a defeat for the Obama administration, which has repeatedly warned that failure to renew the surveillance powers would put the nation’s security at risk.
“Our biggest fear is that we will lose important eyes on people who have made it clear that their mission is to harm American people here and abroad,” Attorney General Loretta Lynch told CBS News on Friday.
White House press secretary Josh Earnest warned lawmakers Friday there was “no Plan B” for the administration to renew the programs if Congress allowed them to lapse.
For days, the Obama administration has been saying that inaction in the Senate would leave a cloud over law enforcement and intelligence officials, who would be in a legal and operational gray area. To ensure that they comply with the law, the NSA would have to begin ending its phone records program.
“It’s a very complex program,” one senior administration official told reporters earlier in the week, in the midst of the administration’s lobbying blitz on Capitol Hill. “If there’s uncertainty about the whether that’s going to be able to go forward in a reformed form, the NSA has to begin responsibly dismantling and winding that program down.
“If they don’t, they face a risk of running afoul — which of course they wouldn’t do — of continuing to collect without the authority being reauthorized,” the official added. “They can’t be in that position.”
That uncertainty happened early on Saturday morning, after senators failed to overcome a 60-vote threshold for a number of different options to either reform the current program or extend it for various periods of time.
The votes were a blow to Senate Majority Leader Mitch McConnellMitch McConnellStates sue to block last-minute Obama environmental rule GOP senators introducing ObamaCare replacement Monday Senators introduce dueling miners bills MORE (R-Ky.) and other GOP security hawks who wanted to extend the Patriot Act without any changes.
Sen. Rand PaulRand PaulPaul, Lee call on Trump to work with Congress on foreign policy GOP senators introducing ObamaCare replacement Monday Sanders, Dems defend ObamaCare at Michigan rally MORE (R-Ky.), a 2016 presidential hopeful, successfully blocked McConnell’s repeated attempts to reauthorize the NSA programs, first for two months, then for a period of several days to buy more time for a long-term solution.
But McConnell and Republican leaders were able to successfully kill the USA Freedom Act, which would have ended the NSA’s current bulk phone records program while extending other surveillance powers.
The bill passed the House on an overwhelming 338-88 vote and was supported by the White House, which spent the week urging the Senate to pass it.
“We’ve got people in the United States Senate right now who are playing chicken with this,” Earnest said Friday. “And to play chicken with that is grossly irresponsible.”
With both a “clean” extension of the Patriot Act and the reform measure blocked in the Senate, the path forward to renew the NSA programs remains unclear.
Privacy advocates expressed hope that the surveillance programs are gone for good.
"Sunsetting the Patriot Act is the biggest win for ending mass surveillance programs, and one that conventional D.C. wisdom said was impossible,” said Tiffiniy Cheng, co-founder of the anti-government surveillance group Fight for the Future. “We are seeing history in the making and it was because the public stood up for our rights to freedom of expression and freedom of association — and there's no turning back now.”