The National Security Agency's ability to collect the phone records
of millions of Americans in bulk expired late Sunday after the Senate
failed to strike a deal before the midnight deadline.
However, that program, as well as several other post-9/11
counterterrorism measures, were likely to be revived in some form in the
coming days after Senate Majority Leader Mitch McConnell, R-Ky.
reluctantly embraced a House-passed bill that would extend the
anti-terror provisions, while also remaking the bulk phone collections
program.
Members of the GOP-controlled chamber had returned to Capitol Hill
for a rare Sunday afternoon session in a last-ditch effort to extend the
NSA’s authority to search for terror connections and to authorize two
other programs under the Patriot Act, which took effect in the weeks
after the 2001 attacks.
The Senate attempted to either pass the House bill, known as the USA Freedom Act, or simply extend the bulk collection program.
The 100-member chamber passed the first of two procedural hurdles,
known as cloture, to proceed with the House bill, known as the USA
Freedom Act. The vote was 77 to 17.
The Majority Leader had preferred to extend the current law. But with
most senators opposed to extending the current law unchanged, even for a
short time, McConnell said the House bill was the only option left
other than letting the NSA program die off entirely.
"It's not ideal but, along with votes on some modest amendments that
attempt to ensure the program can actually work as promised, it's now
the only realistic way forward," McConnell said.
"We shouldn't be disarming unilaterally as our enemies grow more
sophisticated and aggressive, and we certainly should not be doing so
based on a campaign of demagoguery and disinformation launched in the
wake of the unlawful actions of Edward Snowden," McConnell said,
referring to the former NSA contractor who revealed the agency's bulk
data collection program in June 2013.
But no final action was taken before the deadline after Sen. Rand
Paul, R-Ky., served notice that he would assert his prerogatives under
Senate rules to delay a final vote for several days.
“The people who argue that the world will come to an end and we will
be overrun by jihadists (by not passing the bill) are using fear,” Paul,
a 2016 presidential candidate, said on the Senate floor.
Paul's moves infuriated fellow Republicans and they exited the
chamber en masse when he stood up to speak after the Senate's vote on
the House bill.
Sen. John McCain, R-Ariz. complained to reporters that Paul places "a
higher priority on his fundraising and his ambitions than on the
security of the nation."
Paul led a similar, filibuster-like effort before Congress left for
Memorial Day recess to block votes on the House bill, USA Freedom Act,
or extend the current laws. On Sunday, he asserted that ""People here in
town think I'm making a huge mistake. Some of them I think secretly
want there to be an attack on the United States so they can blame it on
me."
Paul had openly contemplated changing his mind on the issue before
departing for the Memorial Day recess. But on Saturday he released a
statement saying: "I will force the expiration of the NSA illegal spy
program. Sometimes, when the problem is big enough, you just have to
start over."
In addition to the bulk phone collections, the two lesser-known
Patriot Act provisions that also lapsed at midnight were one, so far
unused, to help track "lone wolf" terrorism suspects unconnected to a
foreign power. The second allows the government to eavesdrop on suspects
who continually discard their cellphones.
The USA Freedom Act, backed by the White House, extends those two
provisions unchanged, while remaking the bulk collection program over
six months by giving phone companies the job of hanging onto records the
government could search with a warrant.
Late Sunday, White House Press Secretary Josh Earnest issued a
statement saying "The Senate took an important -- if late -- step
forward tonight. We call on the Senate to ensure this irresponsible
lapse in authorities is as short-lived as possible. On a matter as
critical as our national security, individual senators must put aside
their partisan motivations and act swiftly."
Even if the Senate had agreed on Sunday just to extend the current
law, the House was not in session and could not approve it and send it
in time to the president.
To ensure the NSA program has ceased by the time authority for it
expires at midnight, the agency began shutting down the servers that
carry it out at 3:59 p.m. ET Sunday.
That step would have been reversible for four hours. After that, completely rebooting the servers would take about a day.
Sen. Mike Lee, R-Utah, also is critical of the program and joined Paul in his first filibuster-like efforts.
"The American people deserve better than this, especially when it
comes to a program that is an integral part of protecting our national
security," Lee, a Senate Armed Services Committee member, said on CNN's
"State of the Union."
However, he still predicted the House plan would pass by Wednesday.
CIA Director John Brennan said earlier Sunday on CBS’ “Face the
Nation” that terrorists "are looking for the seams to operate within"
and that ending the programs is “something that we can't afford to do
right now."
He also said “too much political grandstanding and crusading for
ideological causes … have skewed the debate on this issue," a likely
reference to last weekend’s filibuster-like efforts by the
Libertarian-minded Paul and other Senate Republicans.
Presidential candidate and Vermont Independent Sen. Bernie Sanders on
Sunday told NBC’s “Meet the Press” that he didn’t vote for the original
Patriot Act, nor its reauthorization and that he considers companies
holding the records “the best of a bad situation.”
Civil libertarians have argued that the surveillance programs have never been shown to produce major results.
"The sky is not going to fall," the American Civil Liberties Union executive director, Anthony Romero, told reporters.
Paul's presidential campaign is aggressively raising money on the issue.
A super PAC supporting him produced a video casting the dispute as a
professional wrestling-style "Brawl for Liberty" between Paul and Obama
-- though Paul's main opponent on the issue is McConnell.