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With Hours Left, The Fate Of The PATRIOT Act Remains Uncertain

Patriot Act

Tomorrow, the Senate will convene in a session called last week by Majority Leader Mitch McConnell after his failed effort to pass an extension to the PATRIOT Act, which expires when the clock strikes midnight on June 1st, but the debate is complicated by Republican Presidential politics:

WASHINGTON — Since 2011, when Republicans took control of the House, Congress has lurched from one deadline to the next, as Republicans and Democrats have sparred bitterly over funding for the government, the ability to lift the debt ceiling and other policy matters.

But unlike those fights, the Senate’s showdown this weekend over the future of the government’s dragnet of American phone records is not the result of a partisan fracas. It is an ideological battle within the Republican Party, pitting the Senate majority leader against the speaker of the House and, in the Senate, newcomers against long-serving members, and defense hawks against a rising tide of younger, more libertarian-minded members often from Western states.

Senate leaders are expected to try to assemble a compromise surveillance bill on Sunday that can get the required votes to proceed before the authorizing law expires Monday. President Obama and his director of national intelligence, James R. Clapper Jr., added more pressure with sharp statements on Friday and Saturday calling for immediate approval of a House-passed surveillance bill.

“A small group of senators is standing in the way, and, unfortunately, some folks are trying to use this debate to score political points,” Mr. Obama said in his weekly address. “But this shouldn’t and can’t be about politics. This is a matter of national security.”

Even if a compromise can be reached in a rare Sunday session in the Senate, all signs point to at least a temporary expiration on Monday of a key section of the Patriot Act that the government has been using to sweep up vast amounts of telephone “metadata.”

Last month, the House overwhelmingly passed a bill that would overhaul the Patriot Act and curtail the metadata surveillance exposed by Edward J. Snowden, the former contractor for the National Security Agency. But in the Senate, that measure failed on a procedural vote this month, and efforts to pass a short-term extension collapsed under objections by three senators.

On Sunday, Senator Mitch McConnell of Kentucky, the majority leader, will try again. But opponents of a quick resolution, like Senator Rand Paul, Republican of Kentucky, can easily force a delay.

“They can take things into the middle of the week,” said Representative Devin Nunes of California, the chairman of the House Intelligence Committee. “This is very likely to go on for a few days.”

Over the congressional recess last week, Senate Republican leaders reached out to Representative Robert W. Goodlatte of Virginia, the House Judiciary Committee chairman, to see if he would negotiate a compromise with Senator Richard M. Burr of North Carolina, the Senate Intelligence Committee chairman and a strong opponent of changes to current law. Mr. Goodlatte declined.

Mr. Paul signaled to political supporters that he intended to keep fighting.

“We fought a revolution over this,” he said at a Republican Party meeting on Friday in Rock Hill, S.C.

Several factors have combined to force the showdown. The revelations of the breadth of the program have increased voter distrust of it, members of Congress said. American companies have complained that foreign customers have been turned off by their products because of fears their privacy would be at risk if they purchased computers and cellphones made in the United States. Democrats and an increasing number of Republicans make up a growing alliance of members as concerned with civil liberties as national security.

“People who could not agree on anything have come together on this issue,” said Neema Singh Guliani, a legislative counsel with the American Civil Liberties Union. “That has created a different dynamic in Congress, which has been so partisan over the last several years. These divisions are not along party lines. They are over something else entirely.”

Under the bipartisan bill, known as the USA Freedom Act, changes would be made to the Patriot Act to prohibit bulk collection, and sweeps that had operated under the guise of so-called national security letters issued by the F.B.I. would end. The data would instead be stored by the phone companies and could be retrieved by intelligence agencies only after approval of the Foreign Intelligence Surveillance Act court.

That has been strongly opposed by Mr. McConnell and more than two dozen other senators who fear ending the program would endanger national security.

President Obama doubled down on his efforts to persuade Congress to renew the law in a statement from the White House late yesterday in which he claimed that allowing the act to expire would put Americans and American national security in danger.This is, of course, utterly absurd in several respects. First of all, even if the law were to expire tomorrow at midnight, American law enforcement and intelligence agencies would still have at their disposal a plethora of methods authorized under laws that predate the PATRIOT Act that allow them to conduct surveillance against suspected terrorists or foreign agents. To a large degree, the powers that were granted when the law was passed after minimal debate in the wake of the September 11th attacks consisted of powers that law enforcement agencies had been trying to persuade Congress to pass for decades prior to 2001. The terrorist attacks, and the sense of panic that swept the nation in their wake and in the wake of the anthrax attacks that occurred shortly thereafter were largely an excuse for an expansion of law enforcement power that had little connection to terrorism or to the circumstances that led to the September 11th attacks. Second, in the fifteen years that is has been law the PATRIOT Act has not assisted in the investigation or prevention of a single major terrorist attack. Indeed, the law has been used more in cases that have nothing to do with terrorism at all than it has in investigations that actually have anything to do with terrorist threats. Given that, the claims by President Obama, intelligence and law enforcement officials, and certain members of Congress, that failure to renew the PATRIOT Act would endanger the nation is nothing more than pure nonsense meant to panic the populace into supporting the passage of a law that is largely unnecessary.

In addition to people like McConnell who oppose the USA Freedom Act because they think it weakens law enforcement and intelligence, there are also those who oppose it because they think it is too strong. Chief among those are Senators Ron Wyden and Rand Paul, who led the effort in the Senate that resulted in that body’s failure to pass any bill last week. Now, Senator Paul is saying that he will use every legislative and parliamentary rule available to him to force the expiration of the PATRIOT Act:

Sen. Rand Paul announced Saturday he intends to force the expiration of the Patriot Act’s surveillance authorities this weekend by refusing to allow votes to go forward that would extend them beyond their June 1 sunset.

In a statement, Paul said he would use the power of one senator to “force the expiration of the NSA illegal spy program,” a vow that appeared to include the House-passed USA Freedom Act, which would renew but reform parts of the post-9/11 law.

“Tomorrow, we will come back with just hours left before the NSA illegal spying powers expire,” the Kentucky Republican and presidential candidate said. “Let me be clear: I acknowledge the need for a robust intelligence agency and for a vigilant national security. I believe we must fight terrorism, and I believe we must stand strong against our enemies.

“But we do not need to give up who we are to defeat them. In fact, we must not. There has to be another way. We must find it together. So tomorrow, I will force the expiration of the NSA illegal spy program.”

Paul’s pledge poured cold water on last-minute efforts by the White House, the intelligence community, tech companies and some privacy advocates to convince Paul and others to allow a quick revote on the Freedom Act, which earned 57 votes last week but fell three shy of the filibuster-60 needed to advance.

Senator Paul is apparently leaving open the possibility that the legislation currently before the Senate could be modified in a way that he would find acceptable, but if that happened it would likely mean that the Act would have to expire before anything could be accomplished. Any last minute changes to the bill in the Senate would have to be approved by the House, which is currently not in session and not scheduled to reconvene until Monday afternoon. While a modified bill could theoretically pass the House via unanimous consent, a contingent of Republican Congressman has remained in Washington for the purpose of making sure that doesn’t happen. Therefore, at the very least, it would appear that the PATRIOT Act will lapse for at least some period of time after tomorrow. Whether it ever comes back to life in some modified form, though, is a completely different question.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    I am not one of those who wets himself over NSA surveillance. However. This law came with a sunset provision and in the clear absence of any sort of emergency, it should be allowed to die.

    I support Rand Paul on this.

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  2. Ron Beasley says:

    @michael reynolds: I agree and find away to do away with the entire Department of Homeland Security at the same time.

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  3. Ron Beasley says:

    I might add The Patriot Act and the Department of Homeland Security sound like something you would expect for a tyrannical regime. And yes, this was all bipartisan.

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  4. gVOR08 says:

    @Ron Beasley: Which is why I’m far less sanguine about NSA surveillance than @michael reynolds:. The Tea Party claim Obama is a dictator, but no. Some on the left feared Bush would use 9/11 to become a dictator. Perhaps just too lazy, but no. But should a future president wish to be a repressive dictator, he’d have all the tools available unless we start backing out of this stuff.

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  5. Ron Beasley says:

    @gVOR08: I can’t argue with that.

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  6. al-Ameda says:

    The Senators should have a full open noisy debate. Open it up, take a week, twoi weeks, but have an honest debate (for a change). This crosses ideological lines.

    I understand the competing positions very well, and I respect both sides. I have always been ambivalent about surveillance of the telecommunications data of millions of people. I have never been panicked about the meta-data mining, in fact, I still don’t see how the NSA could somehow pinpoint individuals within a massive set of telecommunications data. I’m not sure that the old rules – warrants to review tele-comm data on a person-by-person basis – apply or are even practical any more.

    I say it’s time for a re-do of the Patriot Act. Protect the freedom and privacy American citizens wherever possible and practical. Let common sense into the discussions.

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  7. anjin-san says:

    Let the “Patriot” Act die.

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  8. stonetools says:

    I’m with Michael. Not a big deal either way, but would be happy to let it die. That sunset provision was put in there for a reason, let the sunset happen.

    I thought conservatives were big on letting government programs die once their time had passed. Well, maybe they can live by what they preach.

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  9. Gustopher says:

    Without the Patriot Act, the telecoms are free to sell your data to everyone and anyone other than the government — and they do so. Information about when you call your doctor, whether you are having an affair, did you not call your father on his birthday, who you speak to and where you go is being used for marketing purposes, private background checks, and basically every purpose some private enterprise comes up with.

    Given this, I don’t think it is a huge loss of privacy that the government is also empowered to use that data.

    I would rather have strong privacy protections so data about me cannot legally be shared by my phone company to anyone. But, the data is out there, and share-with-anyone-but-the-government is a really crappy halfway point.

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  10. Tillman says:

    I’ll be honest, didn’t actually expect the “repeal” of the Patriot Act this early if ever. I thought it was going to become the sort of thing conspiracy theorists harp on all the time.

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  11. Jeremy R says:

    @michael reynolds:

    I support Rand Paul on this.

    If the end result of Paul’s actions, first voting against cloture on the version of the USA Freedom Act EFF backed last year, and obstructing this version w/ weaker reforms now, somehow results in permanent expiration of these Patriot Act provisions, I’ll give him some credit. But given nearly every Senator who voted against cloture on this current version of the Act immediately after voted for cloture on a clean extension of the expiring authorities (S. 1357), I’ll be shocked if that’s the ultimate result. The moment McConnell stops whipping for a clean extension the reform bill should easily pass, just as it did in the House.

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  12. stonetools says:

    @Gustopher:

    I would rather have strong privacy protections so data about me cannot legally be shared by my phone company to anyone. But, the data is out there, and share-with-anyone-but-the-government is a really crappy halfway point.

    Oddly, Doug has never once posted on the problem of corporations doing anything they want with our data, as far as I know.

    Or maybe not so oddly, come to think of it.

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  13. michael reynolds says:

    @Gustopher:

    This is one of the reasons I’m not worried about the NSA. I am far more affected by private corporations and their dishonest or stupid handling on my data. I agree it is absurd to allow private industry to know absolutely every last detail of my life while whining about the NSA.

    That said, I don’t like emergency measures that persist when the emergency is past.

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  14. wr says:

    @michael reynolds: ” I agree it is absurd to allow private industry to know absolutely every last detail of my life while whining about the NSA.”

    Wouldn’t it make more sense to pass laws to put some controls on the way corporations handle your information rather than using it as an excuse to allow the government to do whatever they want?

    I mean, in a world where congress was allowed to function…

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  15. stonetools says:

    @wr:

    Wouldn’t it make more sense to pass laws to put some controls on the way corporations handle your information rather than using it as an excuse to allow the government to do whatever they want?

    Yeah, I imagine it would be nice to ride a unicorn, too…

    In real life, ten seconds after such a law is proposed, Rand Paul (and Doug Mataconis) would be out there talking about the evil “unintended consequences” of “Big Gumint” regulating corporations’ benign supervision of the data handed to them through “freely entered into contracts”.

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  16. James Pearce says:

    With the president and the majority party in Congress pushing for it, the Patriot Act, if allowed to expire, will be back in some form or another before the month’s over. It may be weaker, with more civil liberties protections, but I wouldn’t count on it.

    It’s important to have hope. Just don’t fool yourself into thinking that we’re going to dismantle the tools we use to fight terrorism, as rusty and bent as they are, in the age of Charlie Hebdo and ISIS.

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  17. Grewgills says:

    @stonetools:
    If people were motivated enough we could pressure the phone companies into making contracts that specifically prevented them from sharing our info with any partners and otherwise protect our privacy on that front. The only way to control government use is through law.

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  18. Jeremy R says:

    @Jeremy R:

    Now that McConnell has finally stopped whipping for clean extension w/ no reforms, cloture for the USA Freedom Act just passed 77-17. As Sen. Paul continues to slow-walk the process, the expiring Patriot Act provisions are likely now to lapse for a few days to be restored with final passage of the bill.

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