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Pressure mounts as Congress dives into NSA fight

 

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 McConnellAddison (Mitch) Mitchell McConnellThe Memo: The GOP's war is already over — Trump won Biden: GOP in the midst of a 'mini-revolution' Ernst defends Cheney, calls for GOP unity MORE (R-Ky.) and other hawkish Republicans, including Armed Services Committee Chairman John McCainJohn Sidney McCainConservative Club for Growth PAC comes out against Stefanik to replace Cheney What's really going on down in Georgia Budowsky: Liz Cheney vs. conservatives in name only MORE (Ariz.), freshman firebrand Sen. Tom CottonTom Bryant CottonOpposition to refugees echoes one of America's most shameful moments White House defends CDC outreach to teachers union Allowing a racist slur against Tim Scott to trend confirms social media's activist bias MORE (Ark.), presidential hopeful Sen. Marco RubioMarco Antonio RubioThe unflappable Liz Cheney: Why Trump Republicans have struggled to crush her  Crist launches bid for Florida governor, seeking to recapture his old job The Hill's 12:30 Report - Presented by ExxonMobil - Trump, Cheney trade jabs MORE (Fla.) and Intelligence Committee Chairman Richard BurrRichard Mauze BurrFDA unveils plan to ban menthol cigarettes, flavored cigars The Hill's Morning Report - Biden to country: 'Turning peril into possibility' Budd to run for Senate in NC MORE (N.C.), want to extend the existing program without change.
 
Meanwhile, the White House, liberal Democratic Sen. Patrick LeahyPatrick Joseph LeahySenate Democrats push Biden over raising refugee cap On The Money: Democratic scramble complicates Biden's human infrastructure plan | Progressives push on student debt relief No designated survivor chosen for Biden's joint address to Congress MORE (Vt.) and Tea Party favorite Sen. Mike LeeMichael (Mike) Shumway LeeRepublicans urge probe into Amazon government cloud-computing bid: report Allowing a racist slur against Tim Scott to trend confirms social media's activist bias Senate passes bipartisan B water infrastructure bill 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 PaulRandal (Rand) Howard PaulSherrod Brown calls Rand Paul 'kind of a lunatic' for not wearing mask Overnight Health Care: WHO-backed Covax gets a boost from Moderna Vaccine hesitancy among lawmakers slows return to normalcy on Capitol Hill 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 SensenbrennerFrank (Jim) James SensenbrennerProtecting the fundamental right of all Americans to have access to the voting booth Republicans compare Ron Johnson to Joe McCarthy: NYT GOP puts pressure on Pelosi over Swalwell MORE (R-Wis.) as well as Reps. Bob GoodlatteRobert (Bob) William GoodlatteBottom line No documents? Hoping for legalization? Be wary of Joe Biden Press: Trump's final presidential pardon: himself 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 CruzRafael (Ted) Edward CruzThe unflappable Liz Cheney: Why Trump Republicans have struggled to crush her  The Memo: The GOP's war is already over — Trump won Hawley says Cheney 'spiraling,' 'out-of-step' amid Trump backlash 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 ToomeyPatrick (Pat) Joseph ToomeySasse rebuked by Nebraska Republican Party over impeachment vote Philly GOP commissioner on censures: 'I would suggest they censure Republican elected officials who are lying' Toomey censured by several Pennsylvania county GOP committees over impeachment vote 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.”