WASHINGTON – The Senate, in an early-morning vote, turned back legislation that would end the National Security Agency’s bulk collection of private telephone records, increasing the likelihood that the legal authority underpinning the controversial surveillance program will expire at month’s end.
A procedural vote on the bill, which was passed by the House last week and supported by the White House, failed 57-42. Sixty votes were necessary to proceed with its consideration.
The rejection of the compromise legislation was the latest turn in a complex standoff over NSA surveillance powers that has pitted Democrats, House Republican leaders, Senate Republican leaders and a GOP presidential candidate against one another as members of Congress eyed a week-long holiday break.
If senators do not act before leaving Washington, the legal authority underpinning the NSA’s bulk collection of private telephone records will expire at midnight May 31.
The impasse continued late into Friday, after the Senate passed contentious trade legislation, then recessed for several hours to allow the clock to run out on a procedural roadblock to the surveillance legislation.
Sen. Rand Paul, R-Ky., the presidential candidate, tweeted his approval of the delay: “Will be seeing everyone overnight it seems. My filibuster continues to end NSA illegal spying.”
Besides Paul’s parliamentary maneuvering, intrigue surrounded whether the Senate’s action, when it comes, would gain House approval before the surveillance authority’s expiration.
The House, now on an extended recess of its own, passed the White House-backed bill replacing the existing program with one that would keep the phone records in private hands except under limited circumstances. But Majority Leader Mitch McConnell, R-Ky., and most fellow Senate Republicans fiercely opposed that legislation, calling it untested and potentially harmful to national security.
In unusually lengthy floor remarks kicking off the Senate’s business Friday morning, McConnell said the system established under the House bill is “untried” and would be “slower and more cumbersome than the one that currently helps keep us safe.”
“At a moment of elevated threat, it would be a mistake to take from our intelligence community any of the valuable tools needed to build a complete picture of terrorist networks and their plans,” McConnell said. “The intelligence community needs these tools to protect Americans.”
Later in the day, White House press secretary Josh Earnest renewed calls to pass the House bill, known as the USA Freedom Act, saying any other legislation would lead to a lapse in legal authority for the phone records program – which would phase out over a six-month period – as well as other less-controversial investigative tools.
“The fact is, we’ve got people in the United States Senate right now who are playing chicken with this,” he said, adding that “there is no plan B” if the House bill is not passed.
Paul held the Senate floor for nearly 11 hours Wednesday to decry any extension of current law. He also opposes the House bill, arguing it does not do enough to prevent potential government invasions of privacy.
Senate Intelligence Committee Chairman Richard Burr, R-N.C., said Thursday that he doubted either the USA Freedom Act or a two-month extension could clear the 60-vote hurdle, and he suggested that a very brief stopgap might pass instead – as short as five days. Burr proposed Thursday extending the six-month transition away from bulk data collection to two years.
But Democrats and civil-libertarian Republicans oppose any extension in the current legal authority, initially passed under Section 215 of the 2001 Patriot Act, which could complicate efforts to pass a stopgap of any length.
“A short-term extension will not solve our problem,” Sen. Richard Blumenthal, D-Conn., said Friday on the floor. “A short-term extension simply is an invitation for more uncertainty, more litigation, more expense … and more compromise to our national security.”
Earnest would not say whether President Obama would sign a short-term extension, and with the House not returning to session until June 1, hours after the current law expires, it is unclear whether it would pass both chambers in any case.
Rep. James Sensenbrenner, R-Wis., a lead author of the USA Freedom Act, called Burr’s proposal a “last-ditch effort to kill” the House bill. “If the Senate coalesces around this approach, the result will be the expiration of important authorities needed to keep our country safe,” he said in a statement.
“[T]he Senate should make no mistake, if it does not pass the bill and the provisions expire – it will have a lot of questions to answer about why it decided to play legislative chicken with important intelligence tools,” said Rep. Adam Schiff, D-Calif., ranking Democrat of the House Select Committee on Intelligence.
But Sen. John Cornyn, R-Texas, McConnell’s top deputy, said he believed the other chamber would flinch: “The House isn’t going to let this go dark,” he said, exiting a lunchtime Republican caucus meeting Friday.
The Obama administration has spent days calling and briefing senators and reporters, arguing that the only path forward that avoids legal and operational uncertainty is to pass the USA Freedom Act.
Extending Section 215 as it is, they say, would be risky legally. This month, a federal appeals court in New York ruled that the NSA program was unlawful because it was not supported by that statute. It held off on halting the program only because it recognized that Congress was debating its future and might change the program or change the law to expressly authorize it.
Even a short-term reauthorization, administration officials say, would risk a federal court’s stopping the program – and there would be nothing at that point to replace it.
The American Civil Liberties Union, the plaintiff in the case heard by the appeals court, would likely seek an injunction if Congress passes a stopgap. “If this program is in place for any longer than June 1, our goal is to get a court order shutting the program down,” said ACLU staff attorney Alex Abdo.
Operationally, officials say, if it is not clear that they will have authority to continue running the program past June 1, they will have to begin dismantling it in the coming days lest they “run the risk of … continuing to collect without the authority” to do so, according to an administration official who spoke on the condition of anonymity.
McConnell has criticized the USA Freedom Act for not mandating that companies retain phone records for any period of time, thus risking that records that might prove important could be lost if they are not all collected upfront, as they are under the current program.
In fact, the NSA is collecting less than a full universe of all Americans’ call records, officials have acknowledged. The Washington Post reported last year that the collection is estimated at less than 30 percent given that, for technical reasons, at least two large wireless companies were not being collected from. That collection gap has not changed, sources said.
And as more and more companies offer fixed-rate plans, they have no need to keep records of individual phone calls for billing purposes, industry officials said.
The administration is also arguing that beyond the bulk records program, Section 215 is vital to the FBI in obtaining specific records of individuals in counterespionage and counterterrorism investigations. A second tool the bureau considers important is the “roving wiretap,” which allows the FBI to monitor suspected spies or terrorists who switch frequently from one phone to another.
Director James Comey this week called them all “critical tools for the FBI that are going to sunset on June 1.”