The fate of the Patriot Act was hanging by a thread Saturday morning after votes overnight left the Senate stalemated, and with little more than a week to go before key powers of the anti-snooping law expire.
Civil libertarians appeared to have the upper hand, mustering 57 votes for a rewrite of the 2001 law that would end the kind of bulk data collection the NSA has used to scoop up records of Americans’ phone calls. But they fell just short of the 60 needed to overcome a GOP-led filibuster.
The hawks fared worse, with just 46 senators — well less than the 60 needed — supporting for their plan to extend the entire Patriot Act, including the bulk collection powers, for two months.
But the stalemate left little middle ground, and all sides are now staring at an end-of-month deadline when three key provisions of the law expire: the ability to carry wiretaps against suspected terrorists from phone to phone; designating terrorists as lone-wolf actors if they don’t belong to a particular organization; and compelling businesses to turn over records they hold on Americans.
It’s that third power, contained in Section 215 of the Patriot Act, that’s proved controversial, particularly as interpreted by the Bush and Obama administrations, which argue it means they can collect records on all Americans, such as their phone metadata.
A majority of senators supported the USA Freedom Act, which would have extended all of the Patriot Act powers, though it would have ruled out bulk collection under Section 215, instead limiting data gathering to specific individuals or groups.
President Obama, who had previously defended the NSA’s bulk snooping, has now embraced changes, and on Friday the White House lashed out at GOP leaders for failing to back the USA Freedom Act or to come up with an acceptable alternative.
“We’ve got people in the United States Senate who are playing chicken with this,” said White House press secretary Josh Earnest, calling it “grossly irresponsible.”
The barb appeared aimed at Senate Majority Leader Mitch McConnell, who led the filibuster against the USA Freedom Act, and pushed the vote until the last moment, hoping to leave colleagues with no choice but to accept a full extension of the Patriot Act and the bulk collection powers, which he said are critical.
“The senate has demonstrated that the House passed bill lacks the support of 60 senators. I would urge a yes vote on the two-month extension,” he said after leading the filibuster, saying he wanted to give Sen. Richard Burr, chairman of the intelligence committee, and Sen. Dianne Feinstein, the ranking Democrat, time to work out a compromise.
But Mrs. Feinstein fired back, saying Mr. McConnell was being disingenuous and that there was no compromise in the works.
“I did not support the Burr bill. I do not believe that’s the way to go,” she said.
The Senate’s stalemate is the more stunning because the House voted 338-88, in overwhelming bipartisan fashion, to pass the USA Freedom Act earlier this month. Both GOP and Democratic leaders in the House had urged the Senate to follow their lead on a bill that had been carefully crafted and had won over both liberals and conservatives.
House lawmakers said Mr. McConnell’s short-term extension never could have passed their chamber anyway. The House has already sent its members home for a week-long Memorial Day vacation, making the Senate’s stalemate all the more futile.
Without any action, though, even the noncontroversial wiretap and lone-wolf powers will expire — a situation all sides say they don’t want, and are planning to blame on each other.
Mr. Obama could end the program himself, but has refused so far to do so, instead demanding Capitol Hill do it through legislation.
The NSA program has been controversial since even before it was publicly revealed by former government contractor Edward Snowden.
Director of National Intelligence James Clapper seemed to mislead the country when in open testimony to Congress he denied the government was scooping up any kinds of records on millions of Americans.
In the two years since Mr. Snowden revealed the program, repeated reviews have found it to be ineffective. In the latest audit by the Justice Department Inspector General, FBI agents couldn’t point to a single plot that has been foiled thanks to bulk data collection.
But defenders say the information adds context to investigations, and said there haven’t been any intentional abuses, so it’s not violating liberties.
The USA Freedom Act includes a six-month transition period to let the NSA set up a replacement program that would presumably rely on telephone companies stories metadata — the numbers, dates and durations of calls — themselves, and then making it available to government agents when they want to query it.
Mr. McConnell, though, said the administration admits that depends on the companies cooperating — something some companies have said they wouldn’t do unless they got liability protections. Mr. McConnell also mocked a promise by the administration to report back if it finds the new law is hampering terrorism investigations, calling that a “cynical” effort.
“At a moment of elevated threat it would be a mistake to take from our intelligence community any of the valuable tools needed to build a complete picture of terrorist networks and their plans,” Mr. McConnell said.
Some senators voted for both the USA Freedom Act and for the two-month extension, while others voted against both proposals.
Sen. Rand Paul, Kentucky Republican, was among that latter group, saying he was wary of extending any of Section 215 without even more safeguards instituted to protect Americans whose records may be scooped by by federal agents.
“Our forefathers would be aghast,” Mr. Paul said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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