Failed Senate Votes Mean Gap in NSA Phone Tap Program

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NSA Protest
Activists protest the surveillance of U.S. citizens by the NSA outside the Justice Department Photographer: Win McNamee/Getty Images

The U.S. government is shutting down its surveillance program that collects the telephone records of millions of citizens after the Senate recessed early Saturday morning without renewing its authorization.

Winding down the program at least temporarily, a move that President Barack Obama’s administration has warned will increase the risk of a terrorist attack on the U.S., is necessary after the Senate failed before going a one-week break to reach agreement on a White House-backed bill to extend expiring provisions of the USA Patriot Act, an administration official said in an e-mail.

Without a legislative deal, Section 215 of the Patriot Act and two other anti-terror programs are set to expire at 12:01 a.m. on June 1. The government has used Section 215, approved after the Sept. 11, 2001, terror attacks on the U.S., to collect records from companies in support of counterterrorism investigations, including details about phone calls.

The government also would lose its authority to use roving wiretaps and would allow the use of fewer tools to search for so-called lone-wolf terrorists.

Three national security officials warned on Thursday that the nation would face “considerable risk and uncertainty” if the programs aren’t renewed.

Senate Majority Leader Mitch McConnell, a Kentucky Republican, led most of his caucus in blocking the legislation, which fell short of the required 60 votes by a margin of 57-42. A proposed two-month stopgap extension also failed, 54-45. Efforts to enact even shorter extensions were thwarted by Kentucky Republican Senator Rand Paul, who objected under Senate procedural rules.

‘Forefathers Aghast’

“This is a debate about whether or not a warrant with a single name of a single company can be used to collect all the records, all of the phone records of all of the people in our country with a single warrant,” Paul said during floor debate. “Our forefathers would be aghast.”

Provisions of the USA Patriot Act used to justify expansive and sometimes divisive surveillance programs came under scrutiny in 2013, after the data-collection program was revealed by former government contractor Edward Snowden.

The NSA’s collection of the phone records of millions of Americans was one of the most contentious domestic spy programs exposed by Snowden. The U.S. Court of Appeals for the Second Circuit ruled earlier this month that the program was unlawful, and many lawmakers support ending it.

Phone Records

Winding down the phone records collection program entails, in part, closing the automatic pipeline that pulls phone records into the NSA’s servers and databases and sealing off access to those computers so analysts don’t run afoul of the law, administration officials said. A complete shutdown will occur at about 6 p.m. on May 31, one official said.

Senators pressured to resolve the matter before departing on a break over the U.S. Memorial Day weekend may now reconvene on May 31, hours before the provisions expire.

The House’s first chance to act on any Senate plan proposed on May 31 would be about 6:30 p.m on June 1, when that chamber has scheduled its first votes after the recess.

A lapse in the programs could be as short as a few hours. If the lapse is prolonged, the NSA would repurpose the computers and servers used in the program for other spy programs, an official said. Administration officials declined to comment about what other actions are being taken to mothball the programs.

Diminishing Returns

Four U.S. intelligence and congressional officials, including supporters of renewal of the NSA’s authority, said in interviews that communications intercepts have produced diminishing returns in recent years, in part because Snowden’s revelations prompted terrorists, drug and human traffickers, and foreign governments to alter how they communicate.

Still, all four said they support the renewal because the programs still produce valuable information and force terrorists and criminals to use slower and more awkward means of communicating, such as human couriers, written messages and one-time “burn phones” instead of e-mails or other online messaging.

The White House on Saturday reiterated its support for the USA Freedom Act that the Senate rejected, referring to statements administration spokesman Josh Earnest made Friday.

’High-Threat Period’

“The way for us to completely eliminate the risk of these critically important national security authorities from lapsing is to pass the USA Freedom Act,” which also will protect civil liberties, Earnest said.

While McConnell warned against letting security lapse during a “high-threat period,” Senate Minority Leader Harry Reid’s spokesman, Adam Jentleson, blamed the impasse on McConnell’s “bad habit of governing by manufactured crisis.”

“Senator McConnell badly misjudged the members of his own conference and failed to listen to advice from Senator Reid and others who saw this mess coming weeks ago and tried to warn him,” Jentleson said Saturday in an e-mail.

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