The future of the Patriot Act grew uncertain Wednesday as an effort to restrain the government’s surveillance powers encountered resistance on both sides of the Capitol.
Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellDemocrats livid over GOP's COVID-19 attacks on Biden US could default within weeks absent action on debt limit: analysis The Hill's Morning Report - Presented by Facebook - Congress avoids shutdown MORE (R-Ky.) upended the debate late Tuesday evening by offering a surprise bill that would extend the Patriot Act for five years without changes.
In the House, meanwhile, a bipartisan plan to reauthorize the law while also making major reforms to the National Security Agency (NSA) hit a snag amid opposition from some hawkish Republicans. Now, a bill that backers had hoped would be introduced and passed through committee by the end of the week is up in the air.
Despite a looming June 1 deadline to renew parts of the national security law, it’s unclear whether any bill can win enough votes to pass the House or Senate.
Some civil liberties advocates are prepared to let the Patriot Act provisions lapse, arguing that outcome could be the only way to curb the government’s voracious collection of personal data.
Intelligence officials and defense hawks, meanwhile, fear curbing the spy powers would handicap intelligence officials and leave them blind to potential terrorist threats.
The divide between the two sides is growing ahead of the June deadline, when three portions of the Patriot Act will sunset, including the controversial Section 215 that allows the government to collect “any tangible things” as part of a terrorism investigation.
The NSA has relied on Section 215 to collect phone records about millions of Americans, including the numbers involved in a call, when it occurred and for how long — but not the actual conversation.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) had planned to introduce legislation early this week that would renew the Patriot Act provisions while ending the phone records program as it currently exists. The bill was expected to require that the NSA obtain a court order before collecting records from private phone companies, among other changes.
However, lawmakers “are still working to perfect it,” a committee aide said on Wednesday evening.
Originally, bipartisan backers of the bill had hoped for a markup in the panel on Thursday. Now, the committee hopes to unveil it “soon,” the aide said, “so that it can move forward with legislation that ends the bulk collection program, strengthens protections for Americans’ civil liberties, and protects our national security.”
Rep. Jerrold Nadler (D-N.Y.), who has worked on the bill with Goodlatte, blamed GOP leaders of the House Intelligence panel for the holdup.
“It’s just a question of getting the Intelligence Committee people on the Republican side to agree to the draft,” he said Wednesday. “I don’t think the differences are over the most important parts of the bill, but they’re still there.”
The sense that new obstacles were emerging was compounded by McConnell’s move in the Senate, which caught many advocates off-guard.
“What we’ve set up is the parameters we’re going to have the debate within,” said Senate Intelligence Committee Chairman Richard BurrRichard Mauze BurrTexas Democrat Rep. Eddie Bernice Johnson announces retirement at end of term On The Money — IRS chief calls for reinforcements Burr brother-in-law ordered to testify in insider trading probe MORE (R-N.C.), who co-sponsored McConnell’s measure.
“I can’t tell you what the point is that we’re going to end, but it’s somewhere between” the House bill and his own, Burr added.
The bill from McConnell and Burr would renew the law as-is until the end of 2020. The majority leader fast-tracked the legislation through a procedural rule that allows it to bypass the committee process and go straight to the Senate floor.
Critics of the NSA panned McConnell’s move.
Sen. Patrick Leahy (D-Vt.), who has worked with the bipartisan group of House lawmakers on reform legislation, called it a “tone-deaf attempt to pave the way for five-and-a-half more years of unchecked surveillance" that "will not succeed.”
Passage of a “clean” Patriot Act provision would appear to be a heavy lift, given that the opposition to NSA surveillance spans the ideological spectrum.
When Leahy unveiled a previous intelligence reform bill last year, he won the support of lawmakers as varied as Sens. Ted Cruz (R-Texas), Mike Lee (R-Utah) and Al Franken (D-Minn.).
Sen. Dianne FeinsteinDianne Emiel FeinsteinWhat's that you smell in the Supreme Court? New variant raises questions about air travel mandates Progressive groups urge Feinstein to back filibuster carve out for voting rights or resign MORE (Calif.) — who is the top Democrat on the Intelligence Committee and has been skeptical of expansive NSA reform efforts — said on Wednesday that her panel had begun discussing a possible path forward.
“I doubt that a straight reauthorization will succeed, so there needs to be a fallback,” she told reporters off the Senate floor.
Burr acknowledged that the “clean” bill might need to incorporate some changes before it could win the support of at least 60 senators.
“The administration reformed the process as much as they can from an executive branch, and I think it’s safe to say that there will probably be a few additional reforms,” he said.
Last year, President Obama announced some executive changes to the NSA that would limit the number of “hops” — or connections — that agents can use to track down a lead from three to two, among other measures.
“But what the straight reauthorization does is create the fence that the debate’s going to happen within,” Burr said.
— This story was first posted at 1:08 p.m and has been updated.