The Senate failed to approve any extensions or reforms to expiring provisions of the USA PATRIOT Act by the deadline of Sunday night during a rare Sunday evening session, leading to the full expiration of these powers.
Before the last minute session, the Senate previously worked and failed to pass an extension (S. 1357) or the House-passed reform bill, the USA FREEDOM Act (H.R. 2048) of the expiring provisions last weekend, before the Memorial Day week-long recess (Defense Daily, May 26).
Sen. Rand Paul (R-Ky.) followed through on previous pledges and blocked any extension or reform of the controversial bulk telephone metadata program. Meeting at 4 p.m. on Sunday, Senate Majority leader Mitch McConnell (R-Ky.) first tried and failed to extend the non-controversial expiring provisions for two weeks: Section 206 of the Patriot Act and Section 6001 of the 2004 Intelligence Reform and Terrorism Prevention Act. Paul objected to unanimous consent such action be considered.
Section 206 authorizes “roving wiretaps” in cases of national security. This allows the government to use a wiretap on a suspect rather than a specific device they are using. Without this provisions, the FBI would need separate orders for each communications device it wants to intercept.
Section 6001 is known as the “lone wolf” provision. Reportedly never been used, it is meant to allow the FBI to eavesdrop on a non-American who is not affiliated with a foreign power or a terrorist group, but is acting alone.
Section 215 of the Patriot Act is the most controversial. It was used to authorize the National Security Agency’s (NSA) controversial bulk collection of domestic telephone records metadata. However, last month the United States Court of Appeals for the Second Circuit ruled these provisions do not allow this action, ruling the actions illegal. The ruling did not immediately end the bulk collection program because the provision was set to expire Sunday night. The court decided to give Congress time to review the program and expiring provisions.
The section is also used by the FBI to obtain business records relevant to terrorism investigations. Without the provision, the FBI goes back to pre-Sept. 11 provisions with more restrictive language.
“The opponents of this program have not been able to provide any–any–examples of the NSA abusing the authorities provided under section 215…I think it is also important to remember that the contents of calls are not captured…The only things in question are the number dialed, the number from which the call was made, the length of the call, and the date. That is it,” McConnell said, in defense of the bulk collection program.
Seeing his inability to pass any clean renewals of any of the expiring provisions, he moved to reconsider H.R. 2048.
“So we are left with option two, the House-passed bill. It is certainly not ideal. But along with votes on some modest amendments that attempt to ensure the program can actually work as promised, it is now the only realistic way forward…We have the House-passed bill with some serious flaws and an inability to get a short-term extension to try to improve the House-passed bill in the way we normally do this—through some kind of consultative process,” McConnell said.
The Senate then approved a cloture vote on the bill, 77-17. A total of 21 senators switched their votes from a previous attempt on May 23.
Paul used procedural tactics to delay consideration of the bill, criticizing the bulk collection program during an extended speech.
“The bill will ultimately pass. We always look for silver linings. I think the bill may be replacing one form of bulk collection with another, but the government, after this bill passes, will no longer collect our phone records. My concern is that the phone companies still may do the same thing,” Paul said.
McConnell’s moves to overcome Paul’s tactics allowed movement to final passage of the bill by Tuesday at the earliest. Several amendments have already been submitted to the bill. However, some are likely to face resistance in both the Senate and the House. One gives the NSA six more months to wind down the bulk collection program and another significantly changes the public reporting of significant Foreign Intelligence Surveillance (FISA) Court opinions.
Senate Democrats, favoring the Freedom Act as passed by the House, attacked McConnell for the events leading up to the expiration.
“The Senate majority leader set up a collision course with no plan on how to resolve it. It seems the only plan the majority leader had on FISA was to jam it through last Friday night; this, despite the fact that an overwhelming majority of House Members oppose an extension, the President opposes an extension, and a dozen Senate Republicans oppose an extension and so voted last Friday,” Senate Minority Leader Harry Reid (D-Nev.) said.
A bipartisan House group backing the Freedom Act released a joint statement today criticizing the Senate and urging it to pass H.R. 2048 without amendment. The authors are House Judiciary Committee Chairman Bob Goodlatte (R-Va.); House Judiciary Committee Ranking Member John Conyers (D-Mich.); Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner (R-Wis.); and Courts, Intellectual Property and the Internet Ranking Member Jerrold Nadler (D-N.Y.).
“The Senate has known for months that these provisions were set to expire last night and yet chose intransigence and procrastination over responsible legislating. The expiration of these authorities affects more than just the NSA bulk collection program. It eliminates tools routinely used by the FBI to investigate domestic terror plots,” the statement said.