Rushing to beat a deadline, the Senate instead beat itself into paralysis over the Patriot Act. In an overnight session that ended up producing nothing but frustration, the upper chamber rejected the House’s reform bill for NSA surveillance, and then failed to move any extension for the existing program. The Department of Justice warned that the NSA will start shutting down its programs immediately:
The Senate struggled unsuccessfully to prevent an interruption in critical government surveillance programs early Saturday, blocking a House-passed bill and several short-term extensions of the USA Patriot Act.
The main stumbling block was a House-passed provision, called the USA Freedom Act, to end the National Security Agency’s bulk collection of domestic phone records. Instead, the records would remain with telephone companies subject to a case-by-case review.
Senate Majority Leader Mitch McConnell, R-Ky., favored retaining the program, but fellow Kentuckian Rand Paul, a Republican presidential contender, blocked any extension, no matter how brief, past the midnight May 31 expiration.
His fellow Kentuckian declared victory on Twitter shortly afterward:
The Senate has refused to reauthorize bulk data collection. I am proud to have stood up for the Bill of Rights. But our fight is not over
— Dr. Rand Paul (@RandPaul) May 23, 2015
That drew the ire of John McCain:
“There’s 99 people who were basically willing to have this put off for a period of time so there could be negotiations and one person decided that he didn’t want to have that happen,” said Sen. John McCain (R. Ariz.), suggesting that Mr. Paul was motivated to take a stand to boost his campaign fundraising. “I’m sure it’s a great revenue raiser.”
Most of the attention has been on the Section 215 authorization, which has become the most controversial part of the Patriot Act. The expiration also impacts other parts of the Patriot Act, CBS News notes including the “roving wiretap” that allows the FBI to seek warrants on the communications of a person rather than a device. That allows law enforcement to keep pace on a subject who uses disposable cell phones and moves repeatedly, rather than having to seek a new warrant for each devices. Small wonder the Justice Department is anxious about the brinksmanship taking place in Congress, and why the White House told its allies to pass the House reform bill rather than let the entire act expire.
The Wall Street Journal’s Kristina Patterson reports that McConnell plans to bring the House bill back to the floor on May 31st. Why so long? It’s the next day the Senate meets, after its Memorial Day holiday:
After next week’s Memorial Day recess, the Senate will resume its debate over the national security law at 4 p.m. on May 31, eight hours before the law expires at midnight. …
“We better be ready next Sunday afternoon,” Senate Majority Leader Mitch McConnell (R., Ky.) said on the Senate floor after the early-morning series of blocked votes. Next Sunday’s session will be an “opportunity to act responsibly and not allow this program to expire,” he said.
Perhaps it would have been more responsible to start having this debate in April, then. The type of surveillance in Section 215 could have been broken out from the more reasonable provisions of the Patriot Act in a manner that allowed for continuity on effective techniques while Congress debated the wisdom and the accountability of Section 215. Instead, Congress has used the same kind of brinksmanship we’ve seen in budget negotiations over the last few years to bring instability to national security rather than bureaucratic operations, and this time they can’t blame the White House for the result.
Finally, we have to ask: If national security and privacy are that important to Congress, why are they taking a week off now?