Patriot Act defenders mounted a last-ditch effort Monday to try to preserve the NSA’s phone-snooping, arguing — against most evidence to the contrary — that the program is useful in the fight against terrorists, and insisting it has been grossly distorted by opponents.
The National Security Agency’s program ground to a halt Sunday night ahead of a midnight deadline, when Section 215 of the Patriot Act expired, depriving the government of its powers to demand all Americans’ phone metadata. Powers to target “lone wolf” terrorists and to have wiretaps follow terrorists, no matter what phone they are using, also expired.
Senators, who careened past the deadline because of miscalculations, questionable scheduling decisions and objections from a lone Republican, are now rushing to try to reimpose all three powers, but are still fighting over how the NSA can keep snooping.
Led by Majority Leader Mitch McConnell, a large group of Senate Republicans is fighting to preserve as much of the NSA’s spying powers as possible in the face of opposition from President Obama, the intelligence community and an overwhelming bipartisan consensus in the House, which last month passed the USA Freedom Act to end the NSA program.
Mr. McConnell will get one last chance to force votes on amendments Tuesday to try to give the NSA more spying time, and to weaken some of the transparency that the House imposed.
Still, the Kentucky Republican seemed resigned to defeat.
“The end game is clear to absolutely everyone. We know how this is going to end,” he said on the chamber floor Monday.
That ending is likely to be clean passage of the USA Freedom Act, unless Mr. McConnell and his troops are able to rally and sway some NSA program critics.
At root, the fight comes down to the credibility of Mr. Obama and his administration. Intelligence officials say they can live without the NSA storing the phone records — the numbers, dates and durations of calls — but Mr. McConnell disbelieves them. In particular, Mr. McConnell doubts that phone companies will willingly store the data for the government to peruse when it needs to.
He and Sen. Richard Burr, chairman of the Senate’s intelligence committee, have proposed requiring the companies to give a six-month heads-up if they are going to reduce the amount of time they store the records, which would give Congress and the administration a chance to rewrite the law again.
Mr. McConnell and Mr. Burr also want to double the transition time to a year, giving the NSA a chance to finalize its plans for how it will query the data when it is held by private companies rather than by the government, and would make intelligence officials certify that they can keep snooping before they dismantle the current program. The two senators also proposed reducing the role of the independent privacy advocate on the secret court that oversees the NSA.
Those changes have met with bipartisan resistance, particularly from the congressmen who wrote the USA Freedom Act and shepherded it through the House. They said the House will likely reject Mr. McConnell’s proposals, forcing the two sides to work out differences in a conference committee — all while the key powers have expired.
It was unclear how much damage the expiration has done to terrorism investigations in the short term. The NSA had to stop collecting new phone records, but the database remains intact. And while investigators can no longer get a single wiretap to follow terrorists from phone to phone, they can still get orders for each phone.
Still, the longer the delay lasts, the more danger there is of missing something, lawmakers said.
The urgency, which Mr. McConnell had hoped to use as pressure for a full extension of all Patriot Act powers, is now working against him as even some would-be allies say it’s more important to pass a bill now and then come back and try to tweak it later.
Civil rights advocates, meanwhile, say Mr. McConnell is fighting straw men, and there’s no evidence his changes are needed. In that, they have the backing of Mr. Obama and the intelligence community, who have blessed the USA Freedom Act as a solid compromise, and who have affirmed in repeated letters that they believe they can adjust to the new program without major problems.
“The winds have clearly changed on this issue, and I think the leadership in the Senate hasn’t quite caught up to that change, both in the public and within his own party, frankly,” said Neema Singh Guliani, legislative counsel at the American Civil Liberties Union.
The NSA program, revealed by former government contractor Edward Snowden in 2013, began an intense debate over the extent of U.S. intelligence-gathering that involved Americans. Still, in some ways it’s surprising the program was the spark.
Backers say there have never been any documented cases of abuse of the program, but a series of independent reviews have also found the program remarkably ineffective in snooping out would-be plots.
Just last month, the FBI’s inspector general said agents couldn’t point to a single major case development that stemmed from Section 215 of the Patriot Act — though agents said the information does help them corroborate information obtained from other sources.
Much of the battle over the program has been a personal test of wills between Mr. McConnell and his seatmate from Kentucky, Sen. Rand Paul. Mr. Paul’s objections late Sunday night sent the Senate over the Patriot Act expiration deadline — but it was Mr. McConnell’s scheduling that gave him that much power.
On Monday, Mr. McConnell tried to short-circuit the process and asked for quick votes on his amendments and the bill, but Mr. Paul again objected, saying he wanted the Senate to debate the amendments he has written as well as Mr. McConnell’s.
Mr. McConnell refused to let the chamber debate Mr. Paul’s proposals, forcing an extra day’s delay.
Immediately after their floor dust-up, however, Mr. Paul walked over to Mr. McConnell, and the two men smiled and talked, suggesting the legislative battle hasn’t poisoned a working relationship that will be important for Mr. Paul as he seeks the GOP’s 2016 presidential nomination. Mr. McConnell has endorsed Mr. Paul’s bid.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
Please read our comment policy before commenting.