Democrats and Republicans in the House linked arms Wednesday and voted to cancel the NSA’s phone-snooping program and end all bulk data collection, approving a rewrite of the Patriot Act just weeks before the law’s key provisions are due to expire.
The 338-88 vote sends the bill to the Senate, where the issue is far more divisive, and where Republican leaders are defending the existing Patriot Act, trying to create an all-or-nothing choice that could force a full extension ahead of the June 1 deadline.
In the House, however, bipartisanship reigned as lawmakers said it was time to dismantle some of the surveillance programs run by both the Bush and Obama administrations — and the National Security Agency’s phone-snooping program in particular.
Rep. F. James Sensenbrenner Jr., Wisconsin Republican and author of the original Patriot Act, said the law was never intended to be used to justify massive collection and storage of Americans’ information, and he blamed overzealous lawyers for distorting the law to justify the NSA program.
“This program is illegal and based on a blatant misinterpretation of the law,” he said.
The rewrite bill, dubbed the USA Freedom Act, would still allow the government to demand companies turn over data on specific targets of terrorism investigations, but they would not be able to gather broad swaths of data. In an effort to head off legal trickery, the bill also prevents the intelligence community from justifying bulk collection under a different part of law other than the Patriot Act.
And the new bill would also demand the secret court that oversees intelligence activities release the legal justifications it’s used to approve some secret programs.
The controversial language lawmakers are rushing to fix is in Section 215 of the Patriot Act, which gives the government power to demand businesses and nonprofits turn over records from their customers or users.
The NSA argued that meant it could demand the metadata — the numbers, times and durations — of all calls made in the U.S. No content was collected under the program, and the government insisted the numbers were only checked when investigators believed they had identified a number associated with terrorism.
But once the secret program was made public in leaks by former government contractor Edward Snowden, it produced deep soul-searching about the balance between liberty and security. NSA backers said there’s no evidence employees abused the program to illicitly snoop on Americans, while civil libertarians, including the president’s own oversight board, questioned the program’s effectiveness, concluding it never stopped any terrorist attacks.
After the Snowden revelations, President Obama said he didn’t like the program but kept it running anyway, saying he needed Congress to tie his hands so he couldn’t snoop so broadly anymore.
Senate Majority Leader Mitch McConnell, however, insists Mr. Obama and future presidents would regret giving up the powers as the threats from terrorist groups such as the Islamic State spread.
Mr. McConnell, who controls the Senate floor schedule, has said his chamber will debate the issue next week — the final week Congress is in session before the June 1 deadline. If no action is taken, Section 215 would expire in its entirety, ending not just bulk-collection powers, but denting the government’s ability to go after individuals’ business records as well.
Mr. McConnell hopes the crush forces lawmakers to accept a full five-year extension.
“The nation is better off with an extension of the Patriot Act than not, but we’ll see where the votes go,” Mr. McConnell said this weekend.
Some analysts said the most likely option is a short-term extension, likely lasting a few months, to get beyond the June 1 deadline and give all sides a chance to negotiate further.
But civil liberties groups said even a short-term extension would undercut NSA opponents’ legal argument that Congress never intended to approve bulk collection.
The last time Capitol Hill reauthorized the Patriot Act, the NSA program was still secret and known to only a few lawmakers, so courts have questioned whether they meant to approve such an expansive collection. A reauthorization now would be proof that they do approve.
The House vote drew strong support from both parties for nixing the NSA program: 196 Republicans and 142 Democrats voted for the rewrite, while just 47 Republicans and 41 Democrats opposed it.
Many of those opponents said they wanted to go even farther in protecting privacy.
“In particular, we need to ensure the destruction of information collected about people who have no ties to terrorism, fully stop bulk data collection under Section 215 of the Patriot Act, and put an end to warrantless searches that government officials have used as justification for a mass collection of emails and phone calls,” said Rep. Scott Garrett, New Jersey Republican.
Still, the 338 votes in favor of the bill was an impressive showing, and built on last year’s 293-vote tally on a weaker bill that cleared the House, then died in a Senate filibuster led by Mr. McConnell.
Elizabeth Goitein, co-director of the Liberty & National Security Program at the Brennan Center for Justice, said the overwhelming vote sends a signal to Mr. McConnell that the House won’t accept an extension.
“Senator McConnell wants to put his head in the sand and go forward with the NSA’s mass surveillance of Americans. That goes against the will of the people, the Congress, the administration and the courts,” she said. “In light of the clear mandate for reform, the Senate should not only take up the USA Freedom Act, it should strengthen it by limiting how long the NSA can keep records and by filling the many loopholes in the bill’s transparency provisions.”
Bulk collection opponents had their hand strengthened last week when a federal appeals court in New York issued a ruling finding that the Patriot Act couldn’t be read to justify the kind of bulk collection the NSA was doing. The judges even hinted that such bulk collection could be unconstitutional — but said they didn’t need to reach a final ruling on that, since the legal issues were easier to decide.
The American Civil Liberties Union said the court ruling should push Congress to go even further than the USA Freedom Act.
“This bill provides baby steps when giant leaps are needed,” said Michael Macleod-Ball, acting director of the ACLU’s Washington legislative office. “If the Senate can’t substantially improve this bill in line with the court’s ruling, it would be better to do nothing and let Section 215 expire, taking the NSA’s illegal surveillance along with it.”
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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