WASHINGTON -- Eight days after blocking it, Senate Republicans have agreed to begin debate on a House bill that would overhaul the National Security Agency's handling of American calling records while preserving other domestic surveillance provisions.
But that remarkable turnabout didn't happen soon enough to prevent the laws governing the programs from expiring at midnight Sunday as Republican Sen. Rand Paul, a presidential contender, stood in the way of extending the program, angering his GOP colleagues and frustrating intelligence and law enforcement officials.
Closer to home
WASHINGTON U.S. Senator Bob Corker, R-Tenn., today made the following statement regarding expiring counterterrorism provisions of the Patriot Act. "Not only am I deeply concerned about the way the administration has limited the effectiveness of this critical national security program, but I am also extremely disappointed lawmakers allowed a lapse in our ability to hunt down terrorists plotting against Americans," said Corker. "Congress should restore these intelligence capabilities in a manner that can still be effective and robust to keep Americans safe while continuing to respect our cherished civil liberties." -- Sen. Bob Corker news release
At a glance
A look at the post-Sept. 11 surveillance provisions that, barring a last-minute deal in Congress, are set to expire when Sunday turns into Monday: Section 215 of the Patriot Act This has been used to authorize the National Security Agency's bulk collection of domestic telephone records, although an appeals court ruled recently that the law could not fairly be read to support that program. The ruling was put on hold pending the debate on Congress. Section 215 is also used by the FBI about 200 times a year to obtain all manner of business records, including hotel bills, travel vouchers and Internet data relevant to a terrorism investigation. The FBI says that collection is extremely useful, though a recent Justice Department report said the bureau could not point to any terrorism cases cracked because of the program, as of 2009. If the program lapses, the FBI will have to go back to pre-Sept. 11 language that is much more restrictive. Section 206 of the Patriot Act This authorizes "roving wiretaps" in national security cases. Commonly used in drug cases, such wiretaps allow the FBI to target a suspect rather than a device, to account for a suspect who discards phones to dodge surveillance. In the national security context, they are more often used in spy cases than terrorism ones, officials say. If this provision expires, the FBI would have to get a separate order for each communications device it wants to intercept. Section 6001 of the 2004 Intelligence Reform and Terrorism Prevention Act The "lone wolf" provision has never been used. It is designed to allow the FBI to eavesdrop on a non-U.S. person who is not affiliated with any foreign power, including a terrorist group.
Now, the question is whether the Senate will pass a bill the House can live with. If so, the surveillance programs will resume, with some significant changes in how the phone records are handled. If not, they will remain dormant.
The Senate vote on the measure known as the USA Freedom Act can come no earlier than 1 a.m., Tuesday. Senate Republican aides said they expected some amendments, but no major revisions to the bill.
"Having gone past the brink, the Senate must now embrace the necessity of acting responsibly," said Adam Schiff, the ranking Democrat on the House intelligence committee, in a statement after Sunday's Senate vote.
The high-stakes drama played out as Congress debated the most significant changes prompted by the disclosures of Edward Snowden, the former NSA contractor who revealed the phone records collection and other main surveillance programs. With no deal reached in time, the NSA stopped collecting American phone records at 3:59 p.m. EST Sunday, officials said.
Other authorities that expired allowed the FBI to collect business records in terrorism and espionage investigations, and to more easily eavesdrop on a suspect who is discarding cell phones to avoid surveillance.
Intelligence officials publicly warned of danger, but were not deeply concerned with a lapse of a few days or weeks, given that the authorities remain available in pending investigations. What they most fear is a legislative impasse that could doom the programs permanently.
"The Senate took an important_if late_step forward tonight," White House spokesman Josh Earnest said in a statement. "We call on the Senate to ensure this irresponsible lapse in authorities is as short-lived as possible."
President Barack Obama supports the USA Freedom Act, which ends NSA bulk collection of U.S. phone records but allows the agency to search records held by the phone companies. That bill, which preserves the other expiring provisions, passed the House overwhelmingly May 13.
Senate Republicans blocked that legislation on May 23, arguing that it undercut the NSA's ability to quickly search the records. It fell three votes short of the 60 needed to advance.
But with no other options, Senate Majority Leader Mitch McConnell, in an about-face, reluctantly embraced the House-passed bill Sunday night.
"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.
The Senate then voted 77-17 to move ahead on the USA Freedom Act.
McConnell was boxed in by the actions of his fellow Kentucky Republican, Paul, who helped stymy the leader's attempt to pass an extension of current law. Paul objected each time McConnell attempted to bring that measure to a vote.
Paul opposes the USA Freedom Act as not going far enough. But, he predicted , the USA Freedom Act "will ultimately pass."
Earlier, in a fiery speech decrying NSA surveillance, he shouted, "This is what we fought the revolution over, are we going to so blithely give up our freedom? ... I'm not going to take it anymore." Supporters wearing red "Stand With Rand" T-shirts packed the spectator gallery.
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, for his part, 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."
Civil liberties groups were split. Some, including the ACLU, oppose the USA Freedom Act as too weak, and applauded the expiration of the surveillance laws. If the USA Freedom Act passes, the NSA would resume bulk phone records collection during a six month transition period to the new system.
"Congress should take advantage of this sunset to pass far-reaching surveillance reform, instead of the weak bill currently under consideration," said Michael Macleod-Ball, acting director of the ACLU Washington Legislative Office.
But that seemed unlikely. Liberal senators who have been aggressive in criticizing the NSA are backing the USA Freedom Act.
"I'm pleased Republicans joined with Democrats to do what's responsible and support the passage of the USA Freedom Act," said Sen. Martin Heinrich, a New Mexico Democrat. "This is a bipartisan compromise that would ensure that our intelligence community has the tools it needs to focus more narrowly on the records of actual terrorists, and end the bulk collection of law-abiding Americans' private phone calls."