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 McConnellSenate confirms first nominees of Trump era The new Washington elite schmoozes over lunch Trump takes first official acts at signing ceremony MORE (R-Ky.) and other hawkish Republicans, including Armed Services Committee Chairman John McCainJohn McCainSenate committee to vote Monday on Tillerson Trump fails to mention Clinton in inaugural address Hillary Clinton under microscope at inauguration MORE (Ariz.), freshman firebrand Sen. Tom CottonTom CottonGOP, Dems hear different things from Trump The Hill's 12:30 Report GOP senator: Obama is ‘a good role model’ MORE (Ark.), presidential hopeful Sen. Marco RubioMarco RubioGOP, Dems hear different things from Trump Senate committee to vote Monday on Tillerson Tillerson met with top State official: report MORE (Fla.) and Intelligence Committee Chairman Richard BurrRichard BurrSenators introduce dueling miners bills Trump education pick to face Warren, Sanders Senate Intel panel to probe Trump team's ties to Russia MORE (N.C.), want to extend the existing program without change.
Meanwhile, the White House, liberal Democratic Sen. Patrick LeahyPatrick LeahySenate confirms first nominees of Trump era Senate gears up for battle over Trump's CIA pick Overnight Tech: Meet the key players for Trump on tech | Patent chief staying on | Kerry aide goes to Snapchat | Uber's M settlement MORE (Vt.) and Tea Party favorite Sen. Mike LeeMike LeeBooker is taking orders from corporate pharmaceuticals Paul, Lee call on Trump to work with Congress on foreign policy Right renews push for term limits as Trump takes power 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 PaulDems blast Trump plans for deep spending cuts Trump team prepares dramatic cuts Paul, Lee call on Trump to work with Congress on foreign policy 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 SensenbrennerHouse group seeks alternatives on encryption fight Congress should learn from states on civil asset forfeiture GOP rep presses Trump to meet with Dalai Lama MORE (R-Wis.) as well as Reps. Bob GoodlatteBob GoodlatteSchumer: GOP 'filling the swamp' by targeting ethics chief Justice, FBI to be investigated over Clinton probes Republicans vote to weaken federal regulatory powers 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 CruzTrump's America: Businessmen in, bureaucrats out When Trump says 'Make America Great Again,' he means it Booker is taking orders from corporate pharmaceuticals 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 ToomeySenate poll raises Republican hopes in Pennsylvania, Florida Lawmakers press Lynch for briefing on Yahoo secret email scanning reports ACLU blasts Yahoo's secret email searches for government 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.”