NSA gets ready to turn out the lights

NSA gets ready to turn out the lights
© Getty Images

The National Security Agency will begin winding down its controversial surveillance programs this weekend unless Congress reaches a deal to maintain them, the Department of Justice warned in a memo to lawmakers on Wednesday.

A legislative solution looks unlikely, given substantive differences between House and Senate Republicans, and the two chambers’ conflicting schedules.

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The House is scheduled to leave Washington on Thursday afternoon and is not set to return until the day after the existing law governing the NSA programs expires.

Even a temporary lapse in the law would be a significant political blow to Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellSenators introduce Trump-backed criminal justice bill On The Money: Senior GOP senator warns Trump against shutdown | Treasury sanctions 17 Saudis over Khashoggi killing | HQ2 deal brings new scrutiny on Amazon | Senate confirms Bowman to Fed board Senior GOP senator warns Trump against partial shutdown MORE (R-Ky.), who has sought to show that a Republican-led Senate can govern more effectively than one run by Democrats.

By taking part in a high-stakes gamble to oppose reform, however, the GOP leader has increased the odds that the legal provisions will expire — at least for a short while.

In its Wednesday memo, the Justice Department said the NSA would begin to wind down its programs after Friday “to ensure that it does not engage in any unauthorized collection or use of the metadata.”

At 12:01 a.m. on June 1, the NSA will not be able to use its “expiring authorities” for any new investigations, it said.

The House last week overwhelmingly passed the USA Freedom Act in a 338-88 vote. The bill would renew the three expiring portions of the Patriot Act but end the NSA’s warrantless bulk collection of U.S. phone records. The program collects metadata, such as the numbers involved in a call and when it occurred, but not people’s conversations.

McConnell has said he would bring the House bill to the Senate floor for a vote, but because of Senate rules, the earliest the chamber could vote would be Friday. The standoff could even force a rare Saturday session, and a filibuster launched Wednesday by Sen. Rand Paul (R-Ky.) targeting the NSA is complicating the schedule further.

The USA Freedom Act appears to be the only chance that lawmakers have to prevent the laws from expiring, but it seems unlikely to get the 60 votes needed to overcome a procedural hurdle.

Virtually all Democrats are expected to support the bill, with the possible exception of Sen. Bill Nelson (D-Fla.), who opposed similar legislation last year, as are a handful of Republicans. The USA Freedom Act has five GOP co-sponsors: Sens. Mike Lee (Utah), Ted Cruz (Texas), Steve Daines (Mont.), Lisa Murkowski (Alaska) and Dean Heller (Nev.).

Rep. Cory Gardner (R-Colo.) also told The Hill this week he would support the bill, bringing the total number of supporters to at least 51, short of the 60 needed.

GOP leaders, including McConnell as well as Intelligence Committee Chairman Richard Burr (R-N.C.), have pledged to oppose the bill, and many GOP lawmakers are likely to join them.

Despite Paul’s vocal tirade against the NSA on Wednesday, he opposed a similar effort last year and appears likely to vote against anything that renews the portions of the Patriot Act.

“There comes a time in the history of nations when fear and complacency allow power to accumulate, and liberty and privacy to suffer,” he said from the Senate floor Wednesday. “That time is now, and I will not 

allow the Patriot Act — the most unpatriotic of acts — go unchallenged.” 

Paul, who is likely to use his anti-NSA speech on the Senate floor to bolster his presidential campaign, suggested Congress was shirking its duty on the legislation.

“We should debate whether or not we are going to relinquish our rights,” Paul said in the early moments of his speech, which began at 1:18 p.m., “or whether or not we are going to have a full and able debate over whether or not we can live within the Constitution.”

Paul’s extended remarks did not actually qualify as a filibuster on Wednesday because they did not come as the Senate was considering a Patriot Act reform bill, nor did they meaningfully affect the chamber’s schedule in any way. Still, the speech became the focus of the Capitol and delivered on his long-promised threat to take to the Senate floor to oppose the Patriot Act.

Supporters of the USA Freedom Act have insisted they could get it across the finish line if only McConnell would allow amendments before subjecting it to a 60-vote threshold.

“McConnell is trying to do a drive-by vote,” said Conn Carroll, a spokesman for Lee, the lead Republican sponsor of the USA Freedom Act. “We should have a real debate on this issue, and that includes amendments from both sides on the USA Freedom Act, and that is what we are pushing for.

“We’re prepared to stay here until next Sunday to have this debate,” he added.

Instead, GOP leaders have planned on letting the USA Freedom Act fail and then taking up a short-term reauthorization of the expiring provisions that would extend them for two months.

A short-term lapse in the law might not matter too much to the NSA and FBI, who will be able to continue existing investigations even if the authorities expire. And the have other ways to collect information. But that could change if the brief extension stretches out for a few days or weeks.

The lapse might also have significant political impact on the House.

Instead of being asked to renew an existing program on June 1, House lawmakers would be asked to massively expand the law. Given the chamber’s tendencies to support strong reform, it seems unclear whether House lawmakers would take that step.

“It would be akin to a new vote to enact Patriot Act authorities — something two-thirds of the House members have never done,” Harley Geiger, the advocacy director at the Center for Democracy and Technology, and a supporter of the USA Freedom Act, wrote in a blog post. “This vote should give many members reason to pause.”