By Julian Hattem - 05/11/15 06:00 AM EDT
Congress is under new pressure to take action on the National Security Agency’s controversial surveillance program, as a deadline looms near and questions swirl about the legality of its data collection practices.
Lawmakers have only 10 legislative days to renew portions of the Patriot Act set to expire on June 1, and there are deep divides in both parties over how to move forward.
Unusual political partnerships and varying motives leave serious doubts about what Congress will do as it sprints toward the finish line, even as a top court demands legislative action.
“Where I think it’s going — God I wish I knew, although I don’t think I’m alone in that,” said Amie Stepanovich, the U.S. policy manager for digital-rights group Access and a supporter of legislation to reform the NSA. “Everybody’s kind of crystal balling it at this point.”
Senate Majority Leader Mitch McConnellMitch McConnellMcConnell: Trump White House will have ‘constraints’ Nearly 400 House bills stuck in Senate limbo McConnell-allied group: We'll back Rubio if he runs for reelection MORE (R-Ky.) and other hawkish Republicans, including Armed Services Committee Chairman John McCainJohn McCainTrump should apologize to heroic POWs McCain urges sports leagues to return 'paid patriotism' money Senators to Obama: Make 'timely' call on Afghan troops levels MORE (Ariz.), freshman firebrand Sen. Tom CottonTom CottonSenators to Obama: Make 'timely' call on Afghan troops levels Dems to GOP: Cancel Memorial Day break GOP senator: Reid's 'ramblings' are 'bitter, vulgar, incoherent' MORE (Ark.), presidential hopeful Sen. Marco RubioMarco RubioFla. Senate candidate bashes Rubio The Hill's 12:30 Report Rubio: 'Maybe' would run for Senate seat if 'good friend' wasn't MORE (Fla.) and Intelligence Committee Chairman Richard BurrRichard BurrThe Trail 2016: Hell breaks loose Burr, Ross in statistical dead heat in NC Senate race Senate panel advances spy policy bill, after House approves its own version MORE (N.C.), want to extend the existing program without change.
Meanwhile, the White House, liberal Democratic Sen. Patrick LeahyPatrick LeahyOvernight Cybersecurity: Guccifer plea deal raises questions in Clinton probe Senate panel delays email privacy vote amid concerns Senate amendments could sink email privacy compromise MORE (Vt.) and Tea Party favorite Sen. Mike LeeMike LeeOvernight Cybersecurity: Guccifer plea deal raises questions in Clinton probe Senate panel delays email privacy vote amid concerns Senate amendments could sink email privacy compromise MORE (R-Utah) want to pass reforms that would effectively end the NSA’s bulk collection of phone records and keep the information in the hands of private companies, all while extending the underlying law.
More radical proposals from Sen. Rand PaulRand PaulOvernight Energy: Trump outlines 'America First' energy plan in North Dakota Overnight Regulation: GOP slams new Obama education rules Paul blocks chemical safety bill in Senate MORE (R-Ky.) — another presidential candidate — as well as advocacy groups like the American Civil Liberties Union would let the law expire entirely, which they say is the best way to protect people’s privacy rights.
New urgency was injected into the fight last week, when a top appeals court handed down a sweeping ruling calling the NSA program illegal, essentially putting an exclamation point on Congress’s need to act.
With little certainty about how the debate will end, lawmakers begin the two-week sprint to a solution this week, when the House is expected to easily pass the USA Freedom Act.
The legislation, written by original Patriot Act author Rep. Jim SensenbrennerJames SensenbrennerFor suburban women, addiction is a key election issue Dems amp up charges of voter suppression in Wisconsin Top Republican warns of discrimination at the polls in November MORE (R-Wis.) as well as Reps. Bob GoodlatteBob GoodlatteIRS head vows to finish term despite impeachment push House Republicans press case for impeaching IRS commissioner Saudis scramble for Washington allies MORE (R-Va.), John Conyers Jr. (D-Mich.) and Jerrold Nadler (D-N.Y.), would extend until 2019 three expiring portions of the Patriot Act.
Among those provisions, which will expire at the end of the month unless Congress acts, is Section 215, which the Obama administration has said authorizes the government to collect, in bulk, “metadata” records about millions of Americans’ phone calls. Metadata include the two numbers involved in a phone call, when the call occurred and how long it lasted but not the content of someone’s conversations.
But the real drama comes after the House acts, and the ball lands in the Senate’s court.
McConnell has indicated he has no desire to take up the Freedom Act, which he has said would cripple American national security. In particular, he objects to language in the bill that would shift possession of the records database from the NSA into the hands of the private telephone companies, a proposal he said would undermine the agency’s control and slow the government’s access to potentially vital information.
“At best, the new system envisioned by the USA Freedom Act would be more cumbersome and time consuming to use when speed and agility are absolutely crucial,” he said in scorching remarks from the Senate floor on Thursday. “At worst, it will not work at all because there is no requirement in the legislation that the telecoms hold the data for any length of time.”
“Put differently, Section 215 helped us find the needle in a haystack, but under the USA Freedom Act, there may not be a haystack to look through at all,” he added.
Yet it’s unclear whether McConnell has the political support to push through a “clean” reauthorization of the law, given the likely opposition from nearly all Democrats as well as a handful of Republicans, including Lee, Paul and Sen. Ted CruzTed CruzParty chairs see reversal of fortune McConnell: Trump White House will have ‘constraints’ Cruz holds back support for Trump with eye on abortion MORE (R-Texas).
Last week’s court ruling also makes McConnell’s position more difficult.
In its opinion, the Second Circuit Court of Appeals declared that the Patriot Act's Section 215 did not authorize the NSA to engage in sweeping collection of Americans’ phone records. If Congress wanted to allow the NSA to do that, the court declared, it would have to do more than just pass a clean version of the bill, and explicitly expand the scope of the law.
“If Congress fails to reauthorize § 215 itself, or reenacts § 215 without expanding it to authorize the telephone metadata program... the program will end,” Judge Gerard Lynch wrote in his 97-page decision on behalf of the court.
“If Mitch McConnell would want to continue bulk collection, Congress would have to act to vastly expand the scope of what Section 215 means today,” echoed Patrick ToomeyPat ToomeyDem group ties Toomey to Wall Street in new ad Dem campaign arm: Poll numbers slipping for vulnerable Republicans Republicans spending M on TV ads in Senate battleground states MORE, a staff attorney at the ACLU, which launched the lawsuit leading to Thursday’s decision.
While the court declared the program illegal, it did not halt it in its tracks. Instead, noting that Congress was poised to act in coming weeks, the appeals court sent the issue back down to a lower court with the effective message to see what happens on Capitol Hill.
Further complicating matters is the fact that two other appeals courts are also reviewing similar cases about the NSA’s data collection. Those rulings — which could be handed down any day — might further cloud the legal landscape.
The Obama administration could also decide to appeal Thursday's ruling to the Supreme Court, though that would likely only occur if the law were extended beyond the end of the month.
With obstacles mounting both for the USA Freedom Act and for McConnell’s clean reauthorization, the specter that the legal provisions will die entirely is looming larger. Intelligence officials say that would take away one tool that they have used to track down terrorists.
To prevent that from happening, GOP leaders have already said they are considering a short-term reauthorization to delay the decision by a few weeks or months. But it’s unclear whether even that could get 60 votes to overcome a filibuster in the Senate or pass the House, which has tended to be more skeptical of the NSA’s powers.
If congressional hawks want to keep any of the Patriot Act powers, they might be forced to cave, many watchers say.
“The Second Circuit clearly put this back in Congress’s lap,” said Mieke Eoyang, a former Democratic aide to the House Intelligence Committee and the director of the National Security Program at Third Way, a think tank.
“The real question for Sen. McConnell is, do you take the reform legislation or do you let the program expire.”