The Senate returns to Washington today for a rare Sunday session, convening eight hours before elements of the USA Patriot Act that the federal government relies on for the authority to conduct surveillance on potential terrorist activities expires. The House has passed legislation that would extend the authority to do most of the surveillance the National Security Agency and FBI now conduct, and if the Senate were to pass that bill, there would be no lapse in the government’s surveillance authority.
The situation would be freighted with suspense, except that on Saturday, Sen. Rand Paul, the Kentucky Republican seeking the GOP presidential nomination in 2016, published a spoiler. In a release on his website and Tweets from his official account, he promised that he would use Senate procedural rules to make sure the government’s surveillance powers expire if only briefly.
“I have fought for several years now to end the illegal spying of the NSA on ordinary Americans,” he said. “The callous use of general warrants and the disregard for the Bill of Rights must end. Forcing us to choose between our rights and our safety is a false choice and we are better than that as a nation and as a people.”
Paul, who has long opposed government’s “spying,” as he calls it, mounted a filibuster for more than 10 hours beginning on May 20 that foreclosed the possibility of passing a bill before the Senate left on Memorial Day recess.
“Tomorrow, we will come back with just hours left before the NSA illegal spying powers expire,” Paul said. “Let me be clear: I acknowledge the need for a robust intelligence agency…. But we do not need to give up who we are to defeat them.”
Although Paul discusses the intelligence gathering authorizations as though they are a single program, there are actually a handful of different authorizations that will expire at midnight – not all of them controversial.
The most well-known of the provisions that will expire is Section 215 of the Patriot Act, which the NSA has used to justify vacuuming up data about incoming and outgoing phone calls from virtually every phone in the country. A federal court recently ruled that the law does not actually support that activity, but the courts agreed to wait until Congress had debated the issue.
Section 215 also covers the FBI’s ability to require businesses to turn over records that might be related to terrorism investigations. The actual usefulness of that program has come under fire from internal Justice Department reports that found no major cases were broken as a result of those records.
A so-far unused provision of a different bill, the Intelligence Reform and Terrorism Prevention Act, will also expire at midnight. Known as the “lone wolf” provision, it covers surveillance on non-U.S. citizens suspected of planning independent terror attacks.
What is likely to happen at some point today is that the Senate will seek unanimous consent to debate a measure extending the surveillance authority. Just what that measure will be is unclear, but the only one with a chance of being signed into law before midnight would be the USA Freedom Act, already passed by the House of Representatives. It would end the bulk collection of phone data by NSA but would require phone companies to retain the data for a certain amount of time so that law enforcement can access it after obtaining a warrant.
Paul, by withholding unanimous consent to move on to the bill, can force a cloture vote, which, assuming leaders can find the 60 votes to pass, would mean that no vote on the bill would be possible until Tuesday at the earliest, after the surveillance provisions expire.
President Obama last week issued an appeal to the Senate to avoid expiration, saying: “I don’t want us to be in a situation in which for a certain period of time those authorities go away, where suddenly we’re dark, and heaven forbid we have a problem where we could have prevented a terrorist attack or apprehended someone who engaged in dangerous activity, but we didn’t do so simply because of inaction in the Senate.”
However, barring a major retreat by Paul – something practically unthinkable, given the line he drew in the sand on Saturday – the federal government’s surveillance authority will expire at midnight tonight, even if only for a day or two.
Paul’s claim is that this will present an opportunity to debate what the public does and does not want the government to do to protect it from terrorism.
“I am ready and willing to start the debate on how we fight terrorism without giving up our liberty,” he said.
“I do not do this to obstruct. I do it to build something better, more effective, more lasting, and more cognizant of who we are as Americans.”
However, it will also present an opportunity for his competitors in the race for the 2016 GOP presidential nomination to label him as soft on terror. New Jersey Governor Chris Christie and Louisiana Gov. Bobby Jindal, for example, have both publicly criticized Paul for his stance, suggesting that he is making the country less safe.
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