Three U.S. spy programs aimed at stopping terrorists expired early Monday amid a standoff among Senate Republicans over legislation to renew them.
For the first time since soon after the Sept. 11, 2001, terrorist attacks, intelligence and law enforcement agencies can’t initiate the use of these tools to monitor communications of suspected terrorists or seize records for counterterrorism investigations.
Senators late Sunday advanced a House bill that would extend the three provisions while curbing spy programs exposed two years ago by former U.S. contractor Edward Snowden.
The Senate couldn’t pass the measure because of procedural obstacles raised by Senator Rand Paul of Kentucky, who says the bill doesn’t do enough to limit spying. Other Republicans including Majority Leader Mitch McConnell also want changes to the House bill.
“This is a debate over your right to be left alone,” Paul said on the Senate floor during a rare Sunday session. “I’m not going to take it anymore. I don’t think the American people are going to take it anymore.” Still, Paul acknowledged, “The bill will ultimately pass.”
The House measure will limit government spying. Notably, however, with the expiration of the programs, the National Security Agency is now prohibited from collecting and storing millions of phone records on Americans who aren’t suspected of having links to terrorism.
The Senate is expected to vote by Wednesday on passing the bill, called the USA Freedom Act, because supporters think they have the votes to override Paul’s procedural hurdles by then. Meanwhile, the programs will be unavailable to the government.
“The Senate took an important -- if late -- step forward tonight,” White House Press Secretary Josh Earnest said in a statement late Sunday. “We call on the Senate to ensure this irresponsible lapse in authorities is as short-lived as possible.”
If senators amend the measure, the House would have to agree to the changes -- which could take more time. Senate leaders must be careful because some changes may alienate lawmakers who had supported the bill.
Late Sunday, McConnell introduced a substitute bill including several amendments and striking a section in the House bill requiring the government to declassify significant decisions and interpretations of the law by the secret court authorized by the Foreign Intelligence Surveillance Act. Striking that section may turn away some lawmakers who have said the court’s operations need to be more transparent.
House Majority Leader Kevin McCarthy of California, asked by reporters Monday whether the lapse of NSA authorities makes the country less safe, said, “I have a real concern for the safety of the country, yes.”
The dispute raised tensions among lawmakers, exposed rifts in the Republican Party over national security policy and pushed back consideration of other legislation, such as the annual defense policy bill.
Even when the Senate acts, the NSA likely will have some of its powers curbed. The House bill would prohibit the NSA from collecting bulk records while renewing the three provisions of the USA Patriot Act, which expired at 12:01 a.m.
Those measures let investigators 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 government surveillance methods under the Patriot Act will continue unchanged.
Republican Senator John Cornyn of Texas said the Senate will try to amend the House bill, which could happen as soon as Tuesday. Senators led by McConnell indicated their frustration with Paul, a Republican presidential candidate, who didn’t attend a party caucus meeting ahead of Sunday’s Senate action.
“We shouldn’t be disarming unilaterally as our enemies grow more sophisticated and aggressive,” McConnell said.
Senator John McCain, an Arizona Republican, told reporters, “I think he obviously has a higher priority for his fundraising and political ambitions than for the security of the nation.”
Democrats led by Minority Leader Harry Reid criticized McConnell for not having a plan to renew the law right away, saying it was known since 2011 that the provisions would expire. The legislation to renew the programs represents the first major national security test for Republicans since taking over the Senate in January.
“We’re here now facing yet another manufactured crisis,” Reid of Nevada said on the Senate floor. “The Senate majority leader set up a collision course with no plan for how to resolve it.”
President Barack Obama, national security officials and many lawmakers have said the programs are needed in the fight against terrorism.
CIA Director John Brennan said Sunday that renewal of the surveillance programs is critical to his agency’s ability to track terrorists.
“These are very important authorities that have not been abused by the government,” Brennan said on CBS’s “Face the Nation” program. “These tools give us better ability to see the tactical moves that various terrorist groups may be making.”
McConnell, who had opposed the House bill, said on the Senate floor Sunday that allowing the programs to expire was “a totally unacceptable outcome.”
“And so, we’re left with option two, the House-passed bill,” McConnell said. “It’s not ideal but, along with votes on some modest amendments that attempt to ensure the program can actually work as promised, it’s now the only realistic way forward.”
The bill would require investigators to get a court warrant and go to telecommunications companies to obtain individual phone records. McConnell and other Republicans said that arrangement hasn’t been tested and their amendments would primarily be aimed at ensuring the government can search records held by the companies in a timely manner.
Republican Senator Richard Burr of North Carolina, chairman of the Senate intelligence committee, introduced four amendments. They would require the government to certify that technology exists for the government to access the records, and require the carriers to notify the government if they decide to hold records for less than 18 months.
Another amendment would give the government a year to transition the phone records program to ensure it works, rather than the six months currently in the bill. The fourth would alter a provision in the legislation allowing for independent lawyers to weigh in on decisions by the secret court that oversees spying under the Foreign Intelligence Surveillance Act.
McConnell’s substitute bill includes Burr’s amendments.
It remains to be seen how House lawmakers deal with an amended version of the bill. Representative Adam Schiff of California, the top Democrat on the House intelligence panel, urged the Senate to not amend the bill.
“Any departure from this carefully crafted compromise will undoubtedly reduce support for it in the House and prolong the expiration of these intelligence tools,” Schiff said in a statement Monday.
Boehner called on the Senate to pass the USA Freedom Act, which the House has already passed and would renew the three spy provisions while curbing bulk collection of data.
“Anyone who is satisfied with letting this critical intelligence capability go dark isn’t taking the terrorist threat seriously,” Boehner, an Ohio Republican, said in a statement. “I’d urge the Senate to pass the bipartisan USA Freedom Act, and do so expeditiously.”
McCarthy, in a memo Friday to fellow House Republicans, raised the possibility that “further action on the expiring provisions of the Patriot Act may be necessary.”
Paul’s campaign against the bill included a speech lasting more than 10 hours on the Senate floor earlier this month and campaign-trail appeals to supporters.
Other Republicans have opposed the bill for different reasons than Paul. They’re unconvinced the government will have adequate technology to search phone records held by carriers.
The bill, H.R. 2048, fell three votes short of the 60 needed to advance in the Senate on May 23. On Sunday, it advanced 77-17.
Roving wiretaps let investigators track suspected terrorists who change the devices they use to communicate, without having to get a court warrant for each device. During the lapse of authority, the FBI maintains it would be able to continue using roving wiretaps that were already approved but couldn’t begin new ones, senior Obama administration officials told reporters on May 27.
Due to the expiration, the government no longer can use Section 215 of the Patriot Act, which was used to justify the bulk phone records program as well as seizing other kinds of information from companies.
Two independent panels, however, have concluded that the phone records program hasn’t helped stop terrorist plots, including the Review Group on Intelligence and Communications Technology which was led by form senior national security officials.
The lone wolf provision has never been used. Provisions of the Patriot Act used to justify expansive and sometimes divisive surveillance programs came under scrutiny in 2013, after the data-collection was revealed by Snowden.