The Capitol Hill impasse over federal surveillance powers continued Monday, as Sen. Rand Paul (R-Ky.) refused to yield to pressure from the White House and fellow Republicans to step aside and allow the reinstatement of key USA Patriot Act provisions that expired early Monday morning.
Senate Majority Leader Mitch McConnell (R-Ky.) again showed agitation with Paul when he came to the Senate floor Monday afternoon to make a request, requiring unanimous consent, to move up a set of votes scheduled for Tuesday.
“Everyone has had ample opportunity to say their piece at this point,” said McConnell, who has endorsed Paul for president. “Now is the time for action.”
But Paul, as he has done on several occasions in recent weeks, objected: “I think the bill could be made much better with amendments, and if we could come to an arrangement to allow amendments to be voted on, I would be happy to allow my consent.”
That puts the Senate on a path to pass surveillance legislation known as the USA Freedom Act as soon as Tuesday, although pitfalls remain. McConnell has set up votes on three amendments, the passage of any of which would send the bill back to the House, where its fate would be uncertain.
House Majority Leader Kevin McCarthy (R-Calif.) on Monday reiterated his preference to have the Senate pass the already-approved House bill, without any amendments, so that it can be sent to President Obama’s desk quickly. “I still think the best advice for them is to pass our bill,” he told reporters.
McCarthy declined several opportunities to say whether he would accept any changes by the Senate, which would require the House to reconsider the anti-terrorism legislation. “The best option for the protection of this country is to pass our bill,” he said.
McConnell’s amendments would tweak the USA Freedom Act, which was the product of months of intense negotiations between lawmakers, intelligence officials, civil libertarians and telecommunications companies.
As written, the bill would end the National Security Agency’s practice of collecting troves of call data from telephone companies after a six-month transition period to a system where the data remains in private hands but could be searched on a case-by-case basis under a court order. It would also reauthorize other, less controversial counterterrorism tools, such as “roving wiretaps” of criminal suspects who frequently switch phones to evade authorities.
One amendment set for a Senate vote would extend the transition period away from bulk collection to one year in order, in McConnell’s words, to “ensure that there is adequate time . . . to build and test a system that doesn’t yet exist.” Another would require the new system to be certified as viable by the director of national intelligence, and a third would require telecom companies to notify the government if they change their data-retention policies.
None of the amendments go as far as McConnell and most Republicans wanted to preserve the status quo, but Sen. Richard Burr (R-N.C.), chairman of the Senate Intelligence Committee, suggested they would improve national security while not watering down the bill so much that it would be rejected by the House.
For instance, Burr said, a year-long transition was a compromise from the two-year transition he favors. “I think that’s a happy spot for us to agree,” he said Monday. “I hope by tomorrow afternoon, we can have this completed and that we can send it to the House, and by the time we go to bed tomorrow night, this might all be back into place.”
But one Republican supporter of the USA Freedom Act, Sen. Mike Lee (R-Utah), warned that the three amendments constitute “poison pills” that could endanger the bill’s prospects of passing the House.
Paul is seeking amendments of his own that would take the bill in the opposite direction, further restricting surveillance powers in a bid to preserve civil liberties. However, McConnell employed a procedural maneuver to prevent amendments other than his own.
White House press secretary Josh Earnest on Monday urged the Senate not to “get into a game where they start adding amendments to this legislation” that would delay Obama from signing the USA Freedom Act into law.
Besides “roving wiretaps,” two other Patriot Act provisions that lapsed Monday are Section 215, which not only justified NSA’s bulk collection but also is used in less controversial fashion to obtain records on individual terrorist suspects, and an authority that permits surveillance on a “lone wolf” suspect who cannot be linked to a specific terrorist group. The latter power has never been used.
Earnest repeatedly declined to say whether Americans were “less safe today” than they were 24 hours earlier, deferring questions to “national security professionals.” CIA Director John Brennan said Sunday that the authorities were “integral to making sure that we’re able to stop terrorists in their tracks.”
The intelligence community is not completely without tools. It has other investigative powers, such as national security letters and traditional wiretaps, that it can use. And, to be sure, there are investigations launched before Sunday in which the expired tools were used, and the surveillance authorized by those tools may continue under a grandfather clause in the Patriot Act, Earnest said.
A national security official confirmed that “the existing orders are still good” under that clause. But, he said, “it’s not a good long-term solution. Or even a mid-term solution.”
If the FBI turns up a new terrorist suspect this week, it cannot use any of the expired tools to investigate that person, said the official, who was not authorized to speak on the record.
Meanwhile, Paul, who packed the Senate gallery with supporters Sunday, faced criticism from all sides. McConnell on Sunday accused him of engaging in a “campaign of demagoguery and disinformation,” while Sen. John McCain (R-Ariz.) said he had a ‘higher priority for his fundraising . . . than the security of the nation.”
On Monday, Earnest took a swipe: “It’s ironic to say the least that Senator Paul has blocked a piece of legislation that would have actually solved the problem he was talking about,” he said. “That may have been an effective campaign tactic, but it wasn’t in the best interest of the country.”
Paul Kane contributed to this report.