A stalemate in the Senate would leave the FBI and National Security Agency without powers they have used to track terrorists for years, say supporters of the Patriot Act.
Without action by the end of the month, provisions of the Patriot Act will expire, which Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellUS could default within weeks absent action on debt limit: analysis The Hill's Morning Report - Presented by Facebook - Congress avoids shutdown Senate dodges initial December crisis with last-minute deal MORE (R-Ky.) argues would put the United States at a pre Sept. 11, 2001-footing.
Yet McConnell has no definite path to extend those provisions.
He and other hawkish senators are pressing for an extension of the Patriot Act measures, but they are opposed by other senators, the White House and a majority of House lawmakers in both parties.
The House voted last week to approve reforms to the NSA provisions in an overwhelming 338-88 vote.
McConnell filed a short-term extension of the existing law 24 hours later, signaling his determination to move in a different direction.
Observers say it’s increasingly looking like the standoff could result in no action by Congress, which would mean the Patriot Act provisions would lapse.
That would be a worst-case scenario for the NSA but a pipe dream for ardent civil libertarians who have been rooting for such a result.
“Right now that we’re down to the wire ... it’s just not clear to me how you get authorization through the Senate and the House,” said Neema Singh Guliani, a lobbyist for the American Civil Liberties Union and critic of the law.
Defenders of the NSA say that would be disastrous for national security.
“Congress must act to reauthorize” the provisions, Sen. Tom Cotton (R-Ark.) and Rep. Mike Pompeo (R-Kan.) — two hawkish members of their respective Intelligence Committees — warned in an op-ed for Fox News on Friday. “The alternative is too dangerous.”
At issue is Section 215 of the Patriot Act, which allows the federal government to collect “any tangible things” that are “relevant” to an investigation into terrorist or foreign intelligence activity.
The NSA has used that to collect millions of people’s phone call “metadata” — which include information about the numbers involved in a call and when the call occurred, but not people’s actual conversations — without a warrant. Supporters say that’s a crucial tool that has allowed the government to connect the dots between suspected terrorists.
If Congress doesn’t act, the program would end, the White House has said. The NSA would simply stop collecting the records.
While supporters, such as McConnell and Cotton, argue the provisions are necessary for the NSA to protect the country, not everyone agrees. A review group commissioned by the White House after former NSA contractor Edward Snowden revealed the existence of the NSA program in 2013 concluded that information obtained under the program “was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional” orders under the law.
In 2014, the Privacy and Civil Liberties Oversight Board issued a report claiming it had “not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.”
The government has pointed to only one case, where the NSA phone records program alone was crucial to a conviction. It involved a Somali cab driver in San Diego who sent $8,500 to his home country to fund the terrorist group al-Shabaab — not an actual terrorist plot to attack America.
Still, supporters say that isn’t the point.
“I’m not going to say that there has never been a situation in which this program standing by itself has foiled a terrorist plot,” Robert Litt, the general counsel at the Office of the Director of National Intelligence, said during a Capitol Hill briefing earlier this month.
“That’s not the way intelligence and terrorism investigations work,” he added. “But there have been instances in the last year in which there has been useful information generated as a result of this program.”
In any case, it isn’t just the NSA that uses the Section 215 powers.
The law also allows the FBI to get “anything you can imagine the government wanting to know from a third party that would help them in an investigation of a potential spy or a potential terrorist,” said Stewart Baker, a former NSA general counsel and partner at the Steptoe and Johnson law firm. That could include records from a hotel registry or rental car agency, for instance.
If Congress runs over the cliff, “the FBI loses a useful tool,” Director James Comey said at a media roundtable last week. “I don't like losing any tool in our toolbox, but we press on.”
The multiple programs would not necessarily stop on a dime. Investigations that have already begun under the law would likely be allowed to continue using the provisions until their conclusion.
But after that, it would be over.
“If you get a call about somebody who’s acting funny on June 2, you won’t be able to use this authority to check who he’s in communication with,” Baker said.
There are other tools that the government still has at its disposal to collect information — such as grand jury subpoenas or so-called pen registers — but intelligence officials say they would inevitably lose access to some information. Due to the sensitive nature of the investigations, however, they have declined to specify exactly where they might go blind.
Congress can still prevent that from happening.
Within the next week, the Senate has the option of voting on either McConnell’s “clean” extension of the current law for five and a half years, a reform bill called the USA Freedom Act or a short-term reauthorization that extends current law for just two months.
It’s unclear whether any of those could get through the chamber, however, given the stark divide on the issue, which has created odd coalitions uniting the liberal Patrick Leahy (D-Vt.) and Tea Party stalwart Mike Lee (R-Utah) pushing for reform.
The odd couple of Sens. Rand PaulRandal (Rand) Howard PaulGOP anger with Fauci rises Congress's goal in December: Avoid shutdown and default Cotton swipes at Fauci: 'These bureaucrats think that they are the science' MORE (R-Ky.), a presidential hopeful, and Ron WydenRonald (Ron) Lee WydenSenate parliamentarian looms over White House spending bill Democrats push tax credits to bolster clean energy Five reasons for concern about Democrats' drug price control plan MORE (D-Ore.) has also threatened to filibuster the “clean” bill, potentially setting the stage for an explosive showdown on the Senate floor.
All the while, the issue will have to contend with a massive trade bill and highway funding reauthorization, which are also sure to steal much of the spotlight.
Even though they fear letting the law expire, NSA backers say that the reform bill wouldn’t be any better.
“I see the Leahy bill and expiration being one and the same,” said Sen. Richard Burr (R-N.C.) — the head of the Intelligence Committee and a co-cosponsor of McConnell’s “clean” renewal.
“Because when you do away with bulk storage you basically have an unworkable system in real time, and part of this program’s design is it works in real time ahead of the threat," he said.