President Barack Obama warned of potentially dire consequences if the Senate balks at renewing U.S. surveillance authorities, as one of the law’s chief critics vowed a showdown when lawmakers convene Sunday for a vote.
Obama and the administration’s chief law enforcement and intelligence officials made public appeals for Senators to approve House legislation that would renew three provisions of the Patriot Act that are set to expire at 12:01 a.m. Monday.
“Heaven forbid we’ve got a problem where we could’ve prevented a terrorist attack or apprehended someone who was engaged in dangerous activity but we didn’t do so simply because of inaction in the Senate,” Obama said Friday after meeting with Attorney General Loretta Lynch in the Oval Office.
Kentucky Senator and Republican presidential candidate Rand Paul, also made a pitch, asking supporters in an e-mail Friday to join him in opposing National Security Agency spying.
While the administration has dispatched Obama’s national security aides to lobby senators, Paul said he has not heard from “anyone that’s interested in negotiating” and there is no deal being offered to meet his concerns about civil liberties.
“We fought a revolution over this,” Paul told a Republican Party meeting Friday in Rock Hill, South Carolina.
USA Freedom Act
The president, a number of lawmakers and a coalition of companies and technology groups are urging senators to pass House legislation that would extend the three expiring provisions of the Patriot Act and that attempts to address some of the civil liberty concerns by prohibiting the government from collecting telephone records in bulk. It would require the NSA to get court warrants to obtain individual phone records held by telecommunication companies.
The bill, known as the USA Freedom Act, was passed by the House 338-88 on May 13. It fell three votes short of the 60 needed to advance in the Senate on May 23. Whether it can pass during the unusual Sunday session isn’t clear. Paul, like any U.S. senator, has the ability to tie the chamber in procedural knots to delay further action beyond the expiration of the three surveillance provisions.
“This whole thing is ridiculous,” Representative Devin Nunes, a California Republican and chairman of the House intelligence committee, said in a phone interview. Nunes sponsored the House bill. “It may be a joke to some and nice fundraising gimmicks, but at the end of the day it won’t be funny if somebody gets killed,” he said.
Other Republicans led by Senator Majority Leader Mitch McConnell oppose the bill for different reasons than Paul. They’re unconvinced the government will have adequate technology to search phone records held by carriers. McConnell, with Senate Intelligence Committee Chairman Richard Burr, a Republican from North Carolina, was seeking changes to the bill.
Without the provisions “the intelligence community will lose important capabilities,” Director of National Intelligence James Clapper said in a statement. “We would lose entirely an important capability that helps us identify potential U.S.-based associates of foreign terrorists.”
Those measures allow investigators to seize targeted phone, hotel and banking records of suspected terrorists and spies; use roving wiretaps; and use tools to search for lone-wolf terrorists not connected to an organization. Other NSA surveillance methods would continue unchanged.
With an expiration, the government wouldn’t be able to collect and store bulk phone records. Instead, investigators would have to get a court warrant and go to phone companies to obtain individual records.
Roving wiretaps enable investigators to track suspected terrorists who change the devices they use to communicate, without having to get a court warrant for each device. If the authority expired, the Federal Bureau of Investigation maintains it would be able to continue using roving wiretaps that were already approved but couldn’t begin new ones, administration officials told reporters on May 27.
The authority allowing the government to track so-called lone wolf terrorists has never been used, said the officials, who briefed reporters on condition of anonymity.
McConnell is seeking a two-month extension of current NSA spying authority to let lawmakers craft an agreement. That proposal didn’t even get a majority in the Senate on May 23.
McConnell’s spokesman, Don Stewart, has reported no progress this week deciding what the Senate will do Sunday.
Obama said he’s indicated to McConnell that “I expect them to take action, and take action swiftly.”
The House returns to Washington on Monday, meaning the three programs would temporarily expire unless the Senate passed the USA Freedom Act unchanged. Nunes said the Senate on Sunday might alter the measure in an effort to get enough votes to move it forward.
“My best guess as to how they would proceed would be some type of amendment to USA Freedom that could get to 60 votes,” Nunes said. He predicted that whatever gets 60 votes in the Senate would also be passed by the House.
Nunes said lawmakers may decide to add language requiring the government to certify technology exists to get phone data held by telephone companies. If the technology didn’t exist, the timeline for ending the NSA program could be extended.
The idea would be “to say why don’t we give them two years to make that happen and insist on some kind of certification that it’s really working before we get rid of the program,” said Stewart Baker, former NSA general counsel and now a partner at the Washington law firm Steptoe & Johnson LLP.
Another possible amendment could be requiring phone companies to retain records for a certain period of time to ensure they’re available for counterterrorism investigations, Baker said in an interview with Bloomberg TV.
Nunes said he has spoken with senators about possible amendments and is available to examine proposals. He said he will return to Washington on Sunday though he would come back earlier if a deal was reached.
“I assume it will start to coalesce over the weekend. I assume they’ll have a game plan on Sunday,” he said.
Paul is seeking votes on amendments that would prohibit the government from collecting bulk records and ensure there aren’t constitutional violations in other spy programs. Paul’s spokeswoman, Jillian Lane, declined by e-mail Friday to describe the specific amendments Paul wants a vote on.
Two House Republicans who oppose the government surveillance were on hand for the chamber’s brief, pro-forma session Friday to make sure no vote would be held to extend the Patriot Act provisions.
“We had double-fail-safe protection on the floor,” Representative Tom Massie of Kentucky said. Massie and Representative Justin Amash of Michigan said letting the Patriot Act provisions expire would be the best outcome.
“We want to make sure we’re here as a backstop to make sure we prevent anything from going through that would violate the rights of Americans,” Amash said.