Congressional Inaction Threatens NSA Spy Program

WASHINGTON—The National Security Agency’s surveillance efforts lurched onto an uncertain new path during the weekend after lawmakers left town for a Memorial Day recess without agreeing on how to modify a program that sweeps up telephone records from millions of Americans.

The spy agency’s leaders ordered that the bulk phone-records program begin winding down operations after the Senate fractured about whether to overhaul the program or simply renew it on a short-term basis.

The congressional inaction means that Section 215 of the USA Patriot Act, which allows for the phone-records collection, will expire June 1, ending a program civil libertarians consider intrusive, but also eliminating a key U.S. intelligence capability for investigating potential threats.


In a last-ditch effort to avert such a lapse, Senate Majority Leader Mitch McConnell (R., Ky.) has ordered his chamber to return from recess on Sunday, a day before the Patriot Act provisions expire. A spokesman wouldn’t say what  Mr. McConnell would ask senators to do when they return.


A senior administration official said Monday that the White House would consider seeking court approval to extend some legal powers set to expire, such as the ability to conduct roving wire taps on court-approved individuals and to conduct enhanced surveillance of suspected “lone wolf” terrorists.


The move would “secure the information we need to protect the nation,” the official said, adding that the White House wouldn’t try to extend the overall bulk phone “metadata” program this way.


Under the section of the Patriot Act, established after the 2001 terrorist attacks, the NSA has collected “metadata” on phone calls, including duration and numbers dialed, among other information. The government said it hasn’t recorded the contents of the phone calls. Civil liberties groups have decried the program as an unwanted invasion of privacy.


Senior officials have said a recent appeals-court decision that determined the program wasn’t supported by law makes any extension by executive action legally untenable.


Unclear is whether data collected in the past would have to be purged, or whether the program’s termination would apply to only new data. That determination likely would be left to the secret Foreign Intelligence Surveillance Court, said a senior intelligence official.


The House overwhelmingly had passed a bill to end the agency’s collection of bulk phone information, requiring the government instead to request the phone records from companies on a case-by-case basis after getting court approval.


The bill had bipartisan support and was backed by the White House. But with a recess looming and time for debate running short, Mr. McConnell opposed that approach and urged a straightforward, short-term extension of the program, calculating that he would better be able to win support for such a proposal than for a House-passed bill that could take days to pass.


His strategy failed when the Senate rejected both a short-term extension as well as the compromise passed by the House amid objections from other senators, including Sen.  Rand Paul (R., Ky.), a 2016 presidential candidate.


After the weekend’s legislative blowup, Mr. McConnell was coming under growing pressure from other lawmakers to simply take up the House legislation.


“What happened this week in the Senate, I think, was a catastrophe in terms of rejecting a very well-thought-out, broadly supported compromise that the intelligence community itself embraces,” Rep.  Adam Schiff (D., Calif.), the top Democrat on the House Intelligence Committee, said Sunday on  CBS,  adding that he hoped the Senate would “see wisdom” and pass the House bill when it returns.


Mr. McConnell also faces pressure from Mr. Paul, who is making his opposition to the phone-records program a centerpiece of his presidential campaign.


Last week, Mr. Paul spoke for more than 10 hours on the Senate floor while using his  Twitter  account to rally support for his campaign.


Mr. McConnell has worked to forge close ties with Mr. Paul since the tense beginning of their relationship, when Mr. McConnell backed a challenger to Mr. Paul in the 2010 Senate Republican primary. But the fight about the phone-records program is providing a new test for Mr. McConnell.

Source: The Wall Street Journal