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 McConnell GOP leaning toward Arizona sex crimes prosecutor to question Kavanaugh accuser: report GOP confidence grows on Kavanaugh Senate panel schedules Friday morning vote for Kavanaugh MORE (R-Ky.) and other hawkish Republicans, including Armed Services Committee Chairman John McCainJohn Sidney McCainUpcoming Kavanaugh hearing: Truth or consequences How the Trump tax law passed: Dealing with a health care hangover Kavanaugh’s fate rests with Sen. Collins MORE (Ariz.), freshman firebrand Sen. Tom CottonThomas (Tom) Bryant CottonGOP senator accuses Dems of ‘character assassination’ on Kavanaugh Sprint/T-Mobile deal must not allow China to threaten US security GOP senators condemn 'vulgar' messages directed at Collins over Kavanaugh MORE (Ark.), presidential hopeful Sen. Marco RubioMarco Antonio RubioJudd Gregg: Two ideas whose time has not come Nikki Haley: New York Times ‘knew the facts’ about curtains and still released story March For Our Lives founder leaves group, says he regrets trying to 'embarrass' Rubio MORE (Fla.) and Intelligence Committee Chairman Richard BurrRichard Mauze BurrHillicon Valley: State officials share tech privacy concerns with Sessions | Senator says election security bill won't pass before midterms | Instagram co-founders leave Facebook | Google chief to meet GOP lawmakers over bias claims Overnight Energy — Sponsored by the National Biodiesel Board — Texas coal plant to shut down | Macron rejects trade deals with climate pact outsiders | Vote on park funding bills to miss deadline Senate panel eyes vote on parks funding bills after key deadline MORE (N.C.), want to extend the existing program without change.
 
Meanwhile, the White House, liberal Democratic Sen. Patrick LeahyPatrick Joseph LeahyAmnesty International calls to halt Kavanaugh nomination Kamala Harris calls for Senate to protect Mueller probe as Rosenstein faces potential dismissal Dem senator praises Ford opening the door to testifying MORE (Vt.) and Tea Party favorite Sen. Mike LeeMichael (Mike) Shumway LeeThis week: Kavanaugh nomination thrown into further chaos Ex-college classmate accuses Kavanaugh of sexual misconduct Kavanaugh accuser agrees to testify next week 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 PaulA Senator Gary Johnson could be good not just for Libertarians, but for the Senate too Conservatives left frustrated as Congress passes big spending bills Senate approves 4B spending bill 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 SensenbrennerOn The Money: Trump readying 0B in tariffs for China | Warren wants companies to disclose climate impacts | Bill aims to provide clarity to online sales tax ruling One bill that will stop the spread of deadly fentanyl Ryan backs Vukmir in Wisconsin Senate GOP primary MORE (R-Wis.) as well as Reps. Bob GoodlatteRobert (Bob) William GoodlatteGOP divide in Congress over Rosenstein's future Jordan wants Rosenstein to testify before House Judiciary Committee House Judiciary chair threatens subpoena if DOJ doesn’t supply McCabe memos by Tuesday 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 CruzBredesen says he won't back Schumer for Senate Dem leader Webb: The new mob: Anti-American Dems Ignored Latino vote will be key in future elections 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 ToomeyOvernight Defense: Pick for South Korean envoy splits with Trump on nuclear threat | McCain blasts move to suspend Korean military exercises | White House defends Trump salute of North Korean general WH backpedals on Trump's 'due process' remark on guns Top GOP candidate drops out of Ohio Senate race 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.”