WASHINGTON – Unable to end a struggle over how to deal with government surveillance programs, Senate Majority Leader Mitch McConnell scheduled a last-minute session to consider retaining the National Security Agency's bulk collection of domestic phone records.
McConnell, R-Ky., warned against allowing the controversial NSA program and other key surveillance activities under the USA Patriot Act to expire at midnight May 31. He said he would call the Senate into session that day, a Sunday, and seek action before the deadline.
Sen. Rand Paul, Kentucky's other senator and a Republican presidential candidate, called the Senate's failure to allow an extension of the surveillance programs during a late-night session Friday into Saturday a victory for privacy rights.
"We should never give up our rights for a false sense of security," Paul said in a statement. "This is only the beginning — the first step of many. I will continue to do all I can until this illegal government spying program is put to an end, once and for all."
By the time senators broke for the holiday, they had blocked a House-passed bill and several short-term extensions of the key provisions in the Patriot Act.
The main stumbling block was a House-passed provision to end the NSA's bulk collection of domestic phone records. Instead, the records would remain with telephone companies subject to a case-by-case review.
The White House has pressured the Senate to back the House bill, which drew an overwhelmingly bipartisan vote last week and had the backing of GOP leaders, Democrats and the libertarian-leaning members.
But the Senate blocked the bill on a vote of 57-42, short of the 60-vote threshold to move ahead. That was immediately followed by rejection of a two-month extension to the existing programs. The vote was 54-45, again short of the 60-vote threshold.
McConnell repeatedly asked for an even shorter renewal of current law, ticking down days from June 8 to June 2. But Paul and other opponents of the post-Sept. 11 law objected each time.
Officials say they will lose valuable surveillance tools if the Senate fails to go along with the House. But key Republican senators, including McConnell, oppose the House approach.
In the near term, the Justice Department has said the NSA would begin winding down its collection of domestic calling records this week if the Senate fails to act because the collection takes time to halt.
At issue is a section of the Patriot Act, Section 215, used by the government to justify secretly collecting the "to and from" information about nearly every American landline telephone call. For technical and bureaucratic reasons, the program was not collecting a large chunk of mobile calling records, which made it less effective as fewer people continued to use landlines.
When former NSA contractor Edward Snowden revealed the program in 2013, many Americans were outraged that NSA had their calling records. President Barack Obama ultimately announced a plan similar to the USA Freedom Act and asked Congress to pass it. He said the plan would preserve the NSA's ability to hunt for domestic connections to international plots without having an intelligence agency hold millions of Americans' private records.
Since it gave the government extraordinary powers, Section 215 of the Patriot Act was designed to expire at midnight on May 31 unless Congress renews it.
Under the USA Freedom Act, the government would transition over six months to a system under which it queries the phone companies with known terrorists' numbers to get back a list of numbers that had been in touch with a terrorist number.
But if Section 215 expires without replacement, the government would lack the blanket authority to conduct those searches. There would be legal methods to hunt for connections in U.S. phone records to terrorists, said current and former U.S. officials who spoke on condition of anonymity because they were not authorized to discuss the matter publicly. But those methods would not be applicable in every case.
Far less attention has been paid to two other surveillance authorities that expire as well. One makes it easier for the FBI to track "lone wolf" terrorism suspects who have no connection to a foreign power, and another allows the government to eavesdrop on suspects who continuously discard their cellphones in an effort to avoid surveillance.