Congress is up against a tight deadline to extend or reform Section 215 of the Patriot Act, the provision that the government claims authorizes the National Security Agency’s phone-data program, before it sunsets on June 1. Naturally, the legislature is in a state of disarray.
The House has already passed the USA Freedom Act, which would put modest limits on the intelligence agency for the first time in decades. Now the Senate is under pressure to act before lawmakers leave for recess Thursday afternoon. If they do nothing, Section 215 will expire hours before they return to Washington, imperiling not only the phone records program but whatever other still-secret intelligence-gathering activities the government conducts under the statute.
The USA Freedom Act is hardly radical. One of its main components—mandating that phone companies store phone records instead of the government—was initially suggested by former NSA Director Keith Alexander, and it’s been endorsed by President Obama. But a major blockage to the reform bill has been Senate majority leader Mitch McConnell, who proposed instead to extend the current version of Section 215 for five years, and then last week offered a two-month extension. GOP leadership in the House indicated that an extension of any length was a non-starter and that they would not wait around while the Senate hemmed and hawed. In other words, McConnell could accept the USA Freedom Act, or nothing.
On Tuesday McConnell retreated slightly, and announced that he would allow a vote on the reform bill. It isn’t clear if it has the 60 votes needed to pass; McConnell seemed to be betting that it would fail and Congress might then accept a short-term extension rather than letting Section 215 expire completely.
Things got even more dramatic on Wednesday afternoon, when Rand Paul showed up to stage a “filibuster.”At the time of this writing Paul is speaking on the Senate floor, but it’s not totally clear what he’s doing there. It’s not technically a filibuster, and the first thing it disrupts will likely be work on the fast-track trade bill. There’s some speculation that Paul is trying to run out the clock in order to block both a clean extension of Section 215 and the USA Freedom Act, which he opposes on the grounds that it does not go far enough (as do some civil-liberties groups). Whatever his other goals are, it’s definitely at least partly a campaign stunt. “As you read this, I will be on the Senate floor to launch my filibuster to stop ANY extension or reauthorization of the ‘PATRIOT Act’s’ unconstitutional and illegal domestic spying programs,” he wrote to donors.
Oregon Senator and NSA critic Ron Wyden joined Paul on the floor, where he promised “to use every procedural tool available to me” to prevent an extension of the bulk-phone-records program. Wyden also criticized supporters of surveillance programs for waiting until the last minute and then claiming, “‘Oh my goodness! It is a dangerous world! We’ve got to continue this program to protect us.’” As he and Paul chatted, Wyden suggested that they could continue indefinitely.
Meanwhile, Republicans who want a two-month extension are pushing a dubious argument that the NSA might have technical difficulties meeting the requirements of the USA Freedom Act. Over at the Intercept, Dan Froomkin argues that resistance from McConnell et al. is all just a charade, so that when the USA Freedom Act inevitably passes, it will look like surveillance reformers won more than they did. I’m sympathetic to that argument. The Justice Department, however, is less sure of the bill’s chances. A memo circulated Wednesday warns that “After May 22, 2015, the National Security Agency will need to begin taking steps to wind down the bulk-telephone-metadata program in anticipation of a possible sunset.” Keeping in mind Congress’s penchant for blowing deadlines, anything could happen.