Senate adjourns with no clear path forward on Patriot Act

Greg Nash

The Senate failed to move forward on legislation to reform the National Security Agency or renew the Patriot Act early on Saturday morning, making it almost a sure bet that portions of the Patriot Act expire at the end of the month.

After a frenzied series of votes that were repeatedly knocked down, Majority Leader Mitch McConnellMitch McConnellIn House GOP, Ryan endorsement of Trump seen as inevitable McConnell: Trump White House will have ‘constraints’ Nearly 400 House bills stuck in Senate limbo MORE (R-Ky.) ordered lawmakers to return home for the Memorial Day weekend and return at noon on May 31 for a rare Sunday session and “one more opportunity to act responsibly.”

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That would give lawmakers just 12 hours to act before portions of the Patriot Act expire — a conclusion almost everyone has said would seriously hamper national security.

“We know what’s going on overseas. We know what’s been tried here at home,’ an exasperated McConnell told lawmakers after 1 a.m.

“We’ve got a week to discuss it. We’ll have one day to do it,” he added. “But we’d better get ready next Sunday afternoon to prevent the country from the danger by the total expiration of the program.”

Starting shortly after midnight on Saturday morning, the Senate voted 57-42 to block legislation to reform the NSA, called the USA Freedom Act.

The late vote to block the USA Freedom Act — approved by the House last week in a bipartisan 338-88 vote — was quickly followed by a vote to kill a planned two-month extension of the current law from McConnell, 45-54. Sixty votes were needed to win on the procedural motion and proceed to the bill.

Then, in a dramatic turn on the Senate floor, McConnell repeatedly tried — and was repeatedly blocked — to extend the June 1 deadline of the Patriot Act provisions to June 8, then June 5, followed by June 3 and finally June 2.

All were blocked. Sen. Rand Paul (R-Ky.) — fresh off his 10.5-hour floor speech opposing the Patriot Act — led the charge against McConnell’s effort, and was joined by Sens. Ron Wyden (D-Ore.) and Martin Heinrich (D-N.M.). 

With lawmakers scrambling to find a solution to the looming deadline, there appears to be no agreed upon path forward. The prospect that the three provisions sunset at the end of the month appears more likely than ever.

“We’ve entered into a momentous debate,” Paul said in objecting to McConnell’s move. “This is a debate about whether or not a warrant is a single name of a single company can be used to collect all of the phone records of all of the people in our country.”

“Our forefathers would be aghast,” he added.

Paul is demanding that he be allowed to introduce amendments going forward, but he is clashing with GOP leaders, most notably McConnell.

Paul and McConnell have been allies in recent years, with Paul backing McConnell in his reelection bid last year. McConnell has endorsed Paul's 2016 bid for president. But their sharply different views on national security have been seen on the Senate floor over the last few days. 

The Patriot Act measures expire on June 1, and contains the provisions authorizing the NSA surveillance programs.

Since the House has recessed for the month, it seems nearly certain that the provisions will expire for at least a short while after the clock strikes midnight on May 31 but before House lawmakers return the afternoon of June 1.

“Make no mistake, it will expire,” said Sen. Barbara Mikulski (D-Md.), whose state includes the NSA’s headquarters.

The Senate’s inability to act is “absolutely outrageous,” she added. “I worry about our country and I worry about our ability to govern.”

“This is as serious as it gets.”

McConnell argued that moving forward with a shorter-term bill and then allowing Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and Sen. Dianne Feinstein (D-Calif.) to work on their own bill was the only possible path forward.

“The two-month extension, it strikes me, would be in the best interest of getting an outcome that’s in the best interest for the Senate and the House and hopefully the president.”

Supporters of the bipartisan House bill, in contrast, are outraged.

“Let’s be clear what happened here,” Sen. Barbara Boxer (D-Calif.) said after the vote was finalized. “We tried with a majority to protect this country and the Republicans objected. Let’s be clear.”

A dozen Republican senators ended up supporting the USA Freedom Act, including presidential candidate Ted Cruz (R-Texas) and Sens. Mike Lee (R-Utah), Ron Johnson (R-Wis.), James Lankford (R-Okla.) and Tim Scott (R-S.C.).

Saturday morning’s failure was also a serious setback for the Obama administration, which had been lobbying members of Congress to pass the USA Freedom Act so that the Patriot Act provisions do not expire.

But while President Obama aggressively lobbied members of his own party to back him on fast-track trade legislation this week, the president was not as vocal on the NSA provisions.

At the end of the month, three parts of the Patriot Act are set to expire, including the controversial Section 215 which the NSA has used to collect in bulk records about millions of Americans’ phone calls. The program was revealed by Edward Snowden two years ago, and has been the target of reform for civil libertarians ever since. 

Failure of the USA Freedom Act — after a similar setback in the closing days of Democrats’ majority in the Senate last year — sends the loudest message yet that Congress is unable to agree on reforming the nation’s intelligence powers.

Senior administration officials have said that uncertainty caused by inaction on the bill would force them to wind down the NSA’s bulk phone collection program in the coming days. They also said it would present a host of operational problems for the NSA and FBI.

In addition to the phone records program, Section 215 also give powers to the FBI to collect various records, and the other provisions allow the agency to target possible “lone wolf” terrorists and people who rely on anonymous “burner” phones.

“There is no Plan B,” White House spokesman Josh Earnest said earlier on Friday.

“The fact is we’ve got people in the United States Senate right now who are playing chicken with this,” he added. “And to play chicken with that is grossly irresponsible.” 

This story was updated at 1:45 a.m.