Key government surveillance powers under the Patriot Act were set to expire Monday after Republican leaders were unable to surmount the objections of Sen. Rand Paul, sending Congress careening past a midnight deadline.
All sides said the situation would soon be fixed — even Mr. Paul acknowledged he can delay matters for only a couple of days — but for now, the U.S. government no longer can obtain wiretaps that follow terrorists from phone to phone, nor can it compel businesses to turn over customers’ documents or records without going through the traditional warrant process.
Even as he staged his lonely fight, Mr. Paul acknowledged it was futile in the long run.
“The Patriot Act will expire tonight. It will only be temporary. They will ultimately get their way,” said the Kentucky Republican, underscoring the limits of his powers of objection, which can push matters until Wednesday at the latest.
In the interim, the National Security Agency won’t be allowed to collect mass amounts of new telephone metadata, putting at least a temporary crimp in the program revealed two years ago by former government contractor Edward Snowden.
The expiration was a black eye for the Senate and particularly for Majority Leader Mitch McConnell, Mr. Paul’s fellow Kentucky Republican, who supports the full extension of all Patriot Act powers, including bulk collection. But Mr. McConnell badly miscalculated the strength of his own hand and bungled the schedule, leaving Mr. Paul with enough power to push the powers to the brink of expiration.
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The Senate’s inept handling of the issue stood in stark contrast to the House, which overwhelmingly passed a bipartisan rewrite of the Patriot Act several weeks ago in the form of the USA Freedom Act. That bill would fully extend two powers — the wiretap provision and another section that allows investigators to target “lone wolf” terrorists — while curtailing the records collection provision.
Under the USA Freedom Act, investigators could go after the records of individuals, but the government, including the NSA, no longer could demand Americans’ data in bulk.
House leaders watched with dismay as their work was squandered by Senate dithering.
“Anyone who is satisfied with letting this critical intelligence capability go dark isn’t taking the terrorist threat seriously. I’d urge the Senate to pass the bipartisan USA Freedom Act, and do so expeditiously,” said House Speaker John A. Boehner, Ohio Republican.
President Obama has said he was ready to sign the House bill, and the White House urged the Senate repeatedly to act in recent days.
Seeking a do-over
Mr. McConnell even tried to reverse himself late Sunday. After leading a filibuster against the USA Freedom Act a week ago, he asked for a do-over and tried to speed the bill through the Senate before the midnight deadline.
“It’s not ideal but, along with votes on some modest amendments that attempt to ensure the program can actually work as promised, it’s now the only realistic way forward,” Mr. McConnell said.
The Senate voted 77-17 to end Mr. McConnell’s earlier filibuster. But he had left too little time for quick action and Mr. Paul, using the rules of the Senate that give any senator immense powers to delay action, pounced.
“This is a debate over the Bill of Rights. This is a debate over the Fourth Amendment. This is a debate over your right to be left alone,” he said.
Mr. Paul is seeking the Republican presidential nomination next year. Some of his supporters, wearing red “Stand with Rand” T-shirts, packed the viewing galleries, underscoring the weighty politics involved.
Mr. Paul’s fellow Republicans tried to silence him. Sen. John McCain of Arizona, a supporter of the Patriot Act’s powers, accused Mr. Paul of not knowing the Senate’s rules. Mr. Paul prevailed, however, and earned his speaking time.
The scheduling predicament was one of Congress’ own making.
Three powers of the Patriot Act, passed in the days immediately after the Sept. 11, 2001, terrorist attacks, are deemed so controversial that they are regularly set to expire — or “sunset” — unless Congress agrees to continue them: the wiretap powers, a provision that allows investigators to target “lone-wolf” terrorists, and the records collection powers.
The provisions have been extended several times, but after Mr. Snowden’s revelations that the NSA was collecting all Americans’ phone metadata — the numbers, dates and durations of phone calls — the records collection powers, contained in Section 215 of the Patriot Act, became a major flashpoint.
In some ways, it’s unusual that the program has produced such heat.
There have never been any proven abuses of the program, and bulk collection has not foiled any terrorist plots.
But NSA backers such as Mr. McConnell insist that the program is carefully crafted and is critical at a time when the terrorist threat is expanding. He doubted the administration’s assurances that it can rely on private companies to collect and store the data for investigators to peruse if they believe they have a terrorist suspect.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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