The Senate failed to advance even a one-day extension of the Patriot Act surveillance authorities early Saturday, with Sen. Rand Paul, R-Ky., leading bipartisan objections to Majority Leader Mitch McConnell, R-Ky., in an extraordinary sequence.

The end result is that the Senate will reconvene for legislative business at 4 p.m. on May 31, staring down a midnight deadline to reauthorize the programs in question, including some far less contentious than the bulk data collection that’s gotten most of the attention…

After midnight, the Senate first blocked the House-passed and Obama administration backed USA Freedom Act, an overhaul bill that received 338 affirmative votes in the House, in a 57-42, three votes shy of the 60 needed to bring it up for debate, with McConnell leading the effort to kill it.

The Senate then voted to block a straight two-month extension backed by McConnell by an even wider margin, 45-54.

The majority leader prioritized a fast-track trade bill over renewing three key PATRIOT Act provisions that expire on May 31. McConnell got the trade bill through on Friday evening, but his attempts to exhaust his colleagues and jam through a clean extension of surveillance laws blew apart just after 1 a.m. Saturday.

A trio of libertarian-leaning senators objected to McConnell’s attempts to offer even a two-day extension of the programs, leaving the Republican leader little option but to send lawmakers home and regroup for a last-ditch attempt next week to salvage the PATRIOT Act…

McConnell now has to hope that the objectors won’t ultimately want to be associated with shuttering programs the government uses to combat terrorism — and that an immediate deadline, as opposed to one 10 days away after a recess, will be enough to convince Paul and Democratic Sens. Ron Wyden of Oregon and Martin Heinrich of New Mexico to relent…

When the Senate returns for an extremely rare Sunday session next week, everyone will be wondering what he’ll do next. Paul seems confident he can bend McConnell — and the entire Senate — to his will and secure votes on two privacy-related amendments. All 100 senators would have to agree to Paul’s unilateral demands of votes on his proposals, a near impossibility in a Senate where every lawmaker is scrapping to secure votes on their proposals week in and out.

Leaving the Capitol, Republicans seemed confused on what their leader’s next steps would be.

“That’s a really good question,” Sen. Mike Lee (R-Utah) said, when asked what would change between Saturday and when senators return to Washington for a rare Sunday session on May 31.

Sen. John McCain (R-Ariz.) seemed equally unsure if Paul would accept a deal before returning to Washington.

“I don’t know. I don’t know. I don’t know. They march to a different drum,” the Armed Services Committee chairman said, adding that he was sure Paul’s tactics were “a great revenue raiser.”

The White House on Friday pressed the Senate to pass National Security Agency (NSA) reforms, saying there is nothing the president can do on his own if Congress allows the Patriot Act provisions to lapse.

“There is no Plan B, these are authorities Congress must legislate,” press secretary Josh Earnest said…

“We’ve got people in the United States Senate playing chicken with this,” Earnest said, calling the delay “grossly irresponsible.”…

Earnest called on the Senate to pass the USA Freedom Act Friday, and not let the debate drag on into the weekend.

The administration, as suggested in a memo it sent Congress on Wednesday, declined to ask a secret surveillance court for another 90-day extension of the order necessary to collect US phone metadata in bulk. The filing deadline was Friday, hours before the Senate failed to come to terms on a bill that would have formally repealed the NSA domestic surveillance program.

“We did not file an application for reauthorization,” an administration official confirmed to the Guardian on Saturday.

The administration decision ensures that beginning at 5pm ET on 1 June, for the first time since October 2001 the NSA will no longer collect en masse Americans’ phone records.

But even if the Senate reconvenes on Sunday and manages to pass legislation pushing back the expiration, members of the House have promised to not let anything through but the Freedom Act, a measure that passed the lower chamber overwhelmingly last week.

The House won’t reconvene from its current Memorial Day recess until the evening of June 1—after the provisions will expire. Rep. Justin Amash, a Michigan Republican and one of Congress’s most strident critics of the Patriot Act, vowed late Friday to block any unanimous-consent deal that would allow the House to agree to any clean short-term extension that the Senate might pass.

Amash was sitting on the side of the Senate chamber Friday evening along with Rep. Thomas Massie, a Kentucky Republican. During the Patriot Act votes, Paul could be seen chatting and laughing with the pair of civil libertarians.

After the sequence of votes, Amash celebrated on Twitter with an #ExpireThePatriotAct hashtag.

Christie drew on his experience as a U.S. attorney to emphasize his credentials for discussing the issue. “This debate that we’re having right now about the PATRIOT Act and whether we should have strong intelligence around the world is a very dangerous debate, because it’s being done by people who have no experience dealing with what I’ve dealt with,” said Christie. “I’m only person in this national conversation at the moment who has used the PATRIOT Act, signed off on it, and convicted terrorists because of it.”

The New Jersey Republican spoke in favor of “aggressive law enforcement and strong intelligence laws” for combatting terrorism threats to the homeland. “I’m telling you there are responsible ways for us to oversee this and make sure civil liberties aren’t violated, but I’ll tell you something else. These same folks who are criticizing us now will be the same people who will stand on Capitol Hill if there’s another attack on America and interrogate the CIA director and FBI director and ask them why they didn’t connect the dots, and not realize the hypocrisy of their actions,” Christie said.

“The first job of the president of the United States is to protect the homeland, and that’s what we need to do,” Christie said, to applause in the audience. Matt Vermillion, a local blogger and Republican activist, responded with a loud shout from the back of the ballroom near the rows of reporters: “Protect the Constitution!” 

Speaking to talk radio host Michael Medved, Walker said it was “incredibly important” for national security that the government retain the legal authority to collect Americans’ metadata en masse.

Walker said that he understands Paul’s concerns, but thinks that the problems with the surveillance programs are “specific to this president and this administration,” rather than issues with the law itself.

“We need to have the capacity to collect information that can be used to identify individuals who are linked to enemy combatants who are gonna do us harm,”
Walker said, adding that recent events at home and abroad — including the attack on French satirical newspaper Charlie Hebdo earlier this year — “further reinforce” the importance of such programs…

Calling such a move an “overreaction,” Walker said that America must “balance the ability to protect ourselves from those sorts of terrorists and attacks” with the need to “hold the government accountable, to make sure that they do so in a way that protects our civil liberties.”

“It’s a shame to see that the Washington machine has co-opted Gov. Walker on this crucial issue,” a Paul campaign spokesman said.

“We can protect Americans WITHOUT violating our freedoms and privacy. Clearly Gov. Walker is wiling to trample the Constitution and American’s right to privacy in support of a program that law enforcement says has not resulted in a single terrorist arrest or thwarted terror plot and our courts have ruled to be illegal.”

Earlier this month, a federal appeals court ruled that while the surveillance agency has long claimed to be acting in accordance with Section 215 of the Patriot Act, the text of that law in fact authorizes no such program. The Obama Administration has been executing a policy that the legislature never passed into being.

But the law that doesn’t even authorize the program is set to expire at the end of the month. And so the court reasoned that Congress could let it expire or vote to change it. For this reason, the court declined to issue an order shutting the program down…

So an illegal program will continue, despite majorities in both houses of Congress casting votes to end what they never began. And the only reason their failure doesn’t matter is that legal provisions that don’t in fact authorize the program will soon expire. And then it will end. What a strange democracy we’ve got.

The “domestic spying” fears have a resonance they would not otherwise have because the Obama administration abuses its powers. It has an undeniable track record of using the IRS, the Justice Department, and other federal agencies to persecute political opponents. While serving as Obama’s secretary of state, Hillary Clinton, the Democrats’ likely presidential nominee by acclamation, even threatened to use “old fashioned techniques of peer-pressure and shaming” in order to suppress constitutionally protected speech disfavored by the administration.

The public does not trust this government to refrain from abusing its powers. If you tell people there are no known cases of the NSA using the metadata program to spy on Americans, they understandably assume that such cases simply haven’t come to light yet, not that they haven’t happened…

Advocates have also been counterproductively guarded in explaining why they need a full dataset: namely (we can infer), so they can run algorithms against it, based on known terrorist communication patterns, and thus discover latent terrorist communications. If this were better understood, most Americans would no more object to the anonymous storage of their phone number’s records (which cannot be further accessed without judicial supervision) than they do to the government’s possession of phone books that list their names and addresses (which are regularly accessed with no judicial supervision). Almost all of us would like to help the government identify and stop terrorists, especially if there is no risk to ourselves in doing so…

The depiction of national-security agents who are trying to protect American lives as seventies-style rogues tearing the Constitution to bits is a smear. But a smear is something, and something always beats nothing. The metadata debate is not over, but this battle is. It’s time to accept defeat gracefully, get as much as we still can for national defense, and resolve to do better in the next round.

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