US Senate Will Try One More Time to Pass Legislation to Allow NSA to Keep Spying Before June 1st Deadline

Jennifer Steinhauer

May 24, 2015

Senate to Try Again After Bill on N.S.A. Collection of Phone Records Is Blocked 

WASHINGTON — After vigorous debate and intense last-minute pressure by Republican leaders, the Senate on Saturday rejected legislation that would curb the federal government’s bulk collection of phone records.

With the death of that measure — passed overwhelmingly in the House this month — senators scrambled but failed to pass a short-term measure to keep the program from going dark when it expires June 1. The disarray in Congress appeared to significantly increase the chances that the government will lose systematic access to newly created calling records by Americans, at least temporarily, after June 1.

“This is a high-threat period,” said Senator Mitch McConnell of Kentucky, the majority leader, who was stymied in his efforts to extend the program even for a few days by the junior senator for his state, Rand Paul.

A senior administration official said Saturday that the “wind-down process has begun” on the surveillance program, and that the administration did not file an application with the Foreign Intelligence Surveillance Court on Friday to continue collecting the data. The White House has long said that the administration would not seek to continue the program if the legal authorities expired. Aspects of the program could be reactivated as allowed under new legislation if Congress acts before the deadline.

The Senate will reconvene on May 31 to try again. But any extension is far from certain to get approval from the House, which is in recess until June 1, with at least one member threatening to block it.

“Any extension is going to be problematic in the House,” said Representative Adam B. Schiff of California, the ranking Democrat on the House Intelligence Committee. Mr. Schiff noted that many of the votes against the measure in the House had come from members who did not think it went far enough. The matter is likely to come up after the one-week recess.

Under the House bill, which passed 338 to 88, the Patriot Act would be changed to prohibit bulk collection by the National Security Agency of so-called metadata charting telephone calls made by Americans. While the bill would take the government out of the collection business, it would not deny it access to the information.

The measure fell short of the 60 votes it needed in the Senate — 57 to 42, with 12 Republicans voting for it — shortly after midnight because Mr. Paul, a candidate for the White House, dragged the procedure out as he had promised in fund-raising messages.

Another bill, which would have extended the program for two months, also failed.

Mr. McConnell then offered a series of agreements to pass ever-shorter extensions, including one for a single day, that required the full consent of the Senate. But Mr. Paul and two Democrats, Senators Ron Wyden of Oregon and Martin Heinrich of New Mexico, objected — leaving the matter to next Sunday.

“This is a debate about whether or not a warrant with a single name of a single company can be used to collect all the records,” Mr. Paul said. “All of the phone records of all of the people in our country with a single warrant. Our forefathers would be aghast.”

Mr. Paul has made it clear that he wants the House bill, known as the USA Freedom Act, brought to the floor with an open amendment process so he can have the chance to toughen it. However, while the House bill has a strong chance of passing the Senate should Mr. McConnell stop pressuring Republicans to reject it, it is likely to fail with stronger language sought by Mr. Paul and others.

Congress has a long way to go toward a compromise, as demonstrated by a statement released by Senator Charles E. Grassley, Republican of Iowa and chairman of the Judiciary Committee. “If these important national security tools were to expire, there’s little doubt the country would be in a greater risk of a terrorist attack,” he said. “However, it’s abundantly clear that we also need reform to the program.”

Representative Devin Nunes, Republican of California and chairman of the House Intelligence Committee, said the leaders of the Intelligence and Judiciary Committees in both chambers would meet over the Memorial Day recess to seek a compromise.

The House bill includes a provision on how phone companies — not the government — would store metadata, which is the reams of information on all phone calls made between numbers, and the time and dates of those calls. The bill also allows for a six-month transition to that new system to develop the technology to store and search that data.

Mr. Nunes said key lawmakers would try to work out a certification process to determine after six months whether the change is technologically feasible. If not, a longer transition period could kick in. The lawmakers will also explore ways to protect the telephone companies from criticism by civil liberties activists over their role in the program.

Even if both chambers agree to an extension of the statute, the program might lapse. President Obama would have to make the legal and political decision to ask the intelligence court for a new order authorizing the bulk phone logs program, and a Federal District Court judge on the court would have to agree that he was authorized to issue such an order, even though a federal appeals court recently ruled that the statute cannot be legitimately interpreted to permit bulk collection.

Still, while a short-term lapse in the bulk phone records collection could have large political repercussions, it might have only a limited impact on counterterrorism investigations. Throughout the lifetime of the once-secret program, which began in October 2001, it has never been the difference maker in thwarting any terrorist attack, according to testimony and government reports.

Senator Patrick J. Leahy, Democrat of Vermont, slowly and painstakingly brought nearly every member of his caucus to support the House bill, losing only Senator Angus King, an independent representing Maine. But Senator Mike Lee of Utah, who was the point man for Republicans, was unable to persuade a handful of wavering Republicans to support the bill and defy Mr. McConnell, who with many senior Republicans on the Intelligence Committee spoke out against the measure.

Mr. McConnell wanted to extend the program as it exists, but realized that he had nowhere near the votes to get that done. On Friday, he held a last-minute session before an extensive vote on a trade package to twist senators’ arms and to convince them that a short-term extension would allow for a compromise in June.

The debate over the federal program became intense after the government’s extensive surveillance efforts were exposed by Edward J. Snowden, the formerNational Security Agency contractor. It was complicated by a federal appeals court ruling this month that found the N.S.A.’s bulk collection of phone records illegal.

Democrats rose to complain angrily after the vote. “Let’s be clear,” said Senator Barbara Boxer, Democrat of California. “We tried to protect this country and Republicans rejected it.”

The odd collection of advocates for change highlighted a changing tide in post-Sept. 11 America, where privacy concerns have become as important as national security interests for many people.

“The Senate is in gridlock, but the tides are shifting,” said Michael W. Macleod-Ball, acting director of the American Civil Liberties Union’s Washington legislative office. “For the first time, a majority of senators took a stand against simply rubber-stamping provisions of the Patriot Actthat have been used to spy on Americans. It’s disappointing that the Senate couldn’t coalesce around far-reaching reform, but in its absence the Senate should simply let the expiring provisions sunset.”