05.20.15

GOP division puts Congress on brink of ending NSA surveillance program

Congressional Republicans remain sharply divided over the fate of the federal government’s bulk collection of private telephone records. As a result, national security officials are preparing for the possibility that the legal authority underpinning those collection programs could expire in less than two weeks.

Senate Majority Leader Mitch McConnell (R-Ky.), who favors a long-term continuation of the existing phone-data surveillance program, said Tuesday that he plans to allow a vote on a House-passed bill aimed at reforming the program.

That bill passed by a wide margin in the House, with nearly 200 Republican votes, but McConnell opposes it and suggested Tuesday that it would not gain the necessary 60 votes to proceed in the Senate. He instead raised the possibility of a short-term extension of the current authority under the Patriot Act’s Section 215, which is set to expire June 1.

 

“What I think is the most important thing is to make sure we still have a program, a program that works, and helps protect the American people from attacks,” McConnell said. “That’s the bottom line here. And we’re going to work toward addressing that this week, and we’ll see how it turns out.”

 

House Republican leaders said this week they have no plans to bring a short-term extension to a vote before starting a week-long recess Thursday.

 

Democrats and at least one GOP senator urged McConnell and like-minded Republicans to drop their opposition to the House bill, calling it a carefully crafted compromise that has won endorsements across the political and ideological spectrum.

 

Sen. Charles E. Schumer (D-N.Y.), the third-ranking Democratic leader, said the bill — known as the USA Freedom Act — represented a “lifeboat” for Republicans who fear a sunset of the current law. “You’re alone on this island,” he said, addressing McConnell. “Take the boat. Get off the island. Let us vote.”

 

On the Senate floor Tuesday afternoon, Sen. Mike Lee (R-Utah) noted that the bill had the support of most House Republicans, Attorney General Loretta E. Lynch, Director of National Intelligence James R. Clapper Jr. and an ideologically diverse coalition of outside groups including the NAACP and the National Rifle Association.

 

“This is a super majority,” Lee said. “A super-duper majority.”

 

But key Republican senators continue to have concerns about the revisions set out in the House bill, which would end the National Security Agency’s mass collection of phone-call metadata. That information, which includes dialed numbers, call times and durations of calls, would remain in the hands of phone companies, who could be required by a court order to search for records linked to terrorism suspects and send the data to the NSA.

 

Sen. Richard Burr (R-N.C.), chairman of the Senate Intelligence Committee, said Monday he was seeking further assurances that the system set out in the House bill would be workable for intelligence agencies.

 

“I’m trying to make sure we’ve got a viable way forward that protects the capabilities that this program provides but allows Mike Lee and others the certainty that it’s going to transition out of a bulk storage program at some point in the future,” he said.

 

Such a compromise, Majority Whip John Cornyn (R-Tex.) said, might involve “a longer period of transition where we can actually verify it works and not just do it based on a hope and prayer.”

 

Lee, a lead Senate sponsor of USA Freedom, said he was open to the idea of a compromise to extend the transition period. “I don’t think there’s anything particularly sacrosanct about the six months,” he said. “I don’t have a problem with someone suggesting a longer term if they can demonstrate that’s necessary.’’

 

Another Republican leader, Sen. John Thune (R-S.D.), said an expiration of the current authority would be a “bad outcome” and said the Senate is most likely to endorse a short-term extension of current authority, for no more than a couple of months.

 

“Clearly, the House is in a very different place right now than where I think the majority of Senate Republicans are,” he said. “That, I think, can be bridged, but it’s going to take time to do that.”

 

After taking its last votes of the week on Thursday afternoon, the House is not set to meet again until June 1 — hours after the current authority would expire. Burr, for one, suggested the Senate could pass legislation late this week, leaving the House to take it up when it returns.

 

National security officials are preparing for a possible sunset of the law, which Congress passed after the 9/11 attacks but whose use to justify the bulk data collection was not publicly known until the disclosures by former NSA contractor Edward Snowden in 2013.

 

If the Senate fails to act this week, allowing the law to lapse, the FBI “will press on,” Director James B. Comey has said. Nonetheless, intelligence officials say the loss of the data-gathering power would be a blow. “You’re taking tools off the table while [the Islamic State] is taking over Ramadi,” said a U.S. official. “They’ve got to take ownership of that.”

 

A lapse of even a day or two would be highly disruptive to ongoing investigations, officials said. If a court order expired during a gap in authority, for instance, it could not be renewed, and preemptively renewing those orders can be time-consuming.

 

“It would screw things up,” said the official, who spoke on the condition of anonymity because he was not authorized to comment openly to reporters.

 

Sen. Martin Heinrich (D-N.M.), who has vowed to filibuster any extension of current law, said he doubts that McConnell has the 60 votes needed to advance a short-term fix, citing widespread opposition among Democrats. “It takes our eye off the ball here in terms of getting a long-term solution,” he said. “Why would we extend even for a short period of time a law that has been ruled illegal by the courts?”

 

A federal appeals court ruled this month that Section 215 of the Patriot Act did not provide sufficient authority for the bulk surveillance program, but it stayed its ruling pending congressional action on the reauthorization of the law.

 

Even if the Senate were to pass a short-term extension, there is significant doubt whether the extension could pass the House. Most of those opposing passage of the USA Freedom Act last week did so out of civil liberties concerns rather than national security fears.

 

Rep. Adam Schiff (D-Calif.), the ranking minority party member of the House Select Committee on Intelligence, said at a Christian Science Monitor breakfast with reporters Tuesday that “there are lots of people in the House who are prepared just to have the sections expire.”

 

If the Senate moves to “kick the can down the road,” he added, “I don’t think that’s going to fly in the House.”

 

Some privacy and transparency groups say that losing Section 215 would not cripple investigations, because the government would still have its predecessor — a pre-Patriot Act provision that would allow it to collect a narrower class of business records if they pertain to foreign powers or agents of foreign powers. Moreover, the groups say, the government has other data-gathering tools, including grand jury subpoenas and national security letters.

 

“It’s time for the national security establishment to argue why they need enhanced powers . . . after 14 years of the Patriot Act being in place,” said David Segal, executive director of Demand Progress, a grass-roots civil liberties group.

 

But in briefings on the Hill as recently as last week, intelligence officials have sought to impress on lawmakers the significance of the expiring authorities. Apart from bulk collection, Section 215 authorizes the gathering of “any tangible things” that are “relevant” to an authorized investigation.

 

Two other provisions that are set to lapse enable surveillance of “lone wolf” suspects who are not linked to any foreign terrorist group or foreign government and allow “roving wiretaps” on targets who switch communications devices.

 

“It would be disastrous from a security perspective to have Section 215 sunset entirely,” said a former senior intelligence official, who spoke on the condition of anonymity. “I think it would be a hard vote politically for moderates on either side of the aisle to defend allowing that to happen.”

 

Comey said Tuesday that beyond bulk collection, Section 215 and the roving wiretap are “critical” tools.

 

“If I lose those tools, it is a huge problem,” he said at an American Law Institute conference.

 

Although Cornyn said he was unsure whether the requisite 60 senators would support a short-term extension, he suggested the impending deadline — and the approaching Senate recess — would spur a compromise.

 

“What usually happens when you get down to a deadline like that is people then reevaluate the circumstances and then do the responsible thing,” he said. “And that’s what we should do . . . which is, don’t let this important program expire.”


Source: Washington Post