Key anti-terrorist programs authorized by the Patriot Act are scheduled to shut down if Congress fails to act by midnight Sunday, but it still remains unclear how the Senate plans to move forward.
When the senators convene at 4:00 p.m. Sunday, they will have three options to keep sections of the Patriot Act from expiring: Pass a temporary extension of the Patriot Act, pass the USA Freedom Act (which would end the NSA’s practice of bulk collection of phone records–the date, time, and length, but not the content, of phone calls–while reauthorizing the rest of the Patriot Act), or pass a revised version of the USA Freedom Act. Before the Memorial Day recess, the Senate fell three votes shy from ending debate on the House-passed USA Freedom Act and came up 15 votes short of passing a clean two-month extension of the Patriot Act.
As CBS reports: “If the Senate does not act, not only will the bulk collection of telephone data end but counterterrorism investigators will lose other surveillance tools: Gathering phone and internet records of suspects (Before 9/11, secret court warrants limited record searches to business, bank and hotel activity); roving wiretaps; and so-called ‘lone wolf’ surveillance of non-U.S. suspects not linked to a known terrorist group.”
Although it remains unclear how the Senate will proceed, it appears likely the government will lose access to these anti-terrorist tools for at least a day or two. “If there is any objection, final passage would not be on Sunday. More likely on Tuesday or Wednesday,” a senior GOP leadership aide tells THE WEEKLY STANDARD. And Senator Rand Paul of Kentucky, a Republican presidential candidate, will likely object to a vote on any measure that would allow expiring sections of the Patriot Act to continue.
“Sen. Paul will object to voting for the USA Freedom Act as it is,” Paul’s spokeswoman Jillian Lane tells TWS in an email. Even though the USA Freedom Act (which passed the House 338 to 88) has the backing of the libertarian Cato Institute and has been criticized by some national security hawks, Paul opposes it because it doesn’t go far enough.
On Friday, Paul’s super PAC released a web video hyping Sunday night’s debate on the Patriot Act as one would promote a monster truck rally or pro-wrestling match. “Get ready, America, for the biggest brawl for liberty of the century!” an announcer shouts. The ad goes on to mock Texas senator Ted Cruz as “The Capitulating Canadian” and accuses South Carolina senator Lindsey Graham of “trying to read your emails.”
While Senator Paul prepares to steal the political spotlight, the job of reaching a final resolution on the Patriot Act is largely in the hands of North Carolina senator Richard Burr, chairman of the Senate intelligence committee.
Congressman Devin Nunes, chairman of the House intelligence committee, told me on Thursday that he hadn’t spoken to Burr in a couple days, but Nunes was confident that the House would pass whatever makes it out of the Senate. “Anything that can get [60 votes for] cloture over there, I would assume it would be able to pass the House,” said Nunes.
Burr declined interviews this week, but two primary objections to the USA Freedom Act are that the bill does not require phone companies to keep records for any amount of time and that the six-month implementation timeframe is too short. According to the New York Times, Burr would like a two-year certification process “to ensure that telephone companies had developed the technology they needed to store the reams of data that were now gathered by the government.”
Nunes doesn’t object to strengthening the bill, but said concerns are overblown. As to the objection that the bill doesn’t require phone companies to keep phone records, Nunes said: “Right now, they keep it. I assume they’re going to keep it. It would be good if they were all keeping it for five years. But the administration has said they can live with it down to two years.” An F.C.C. regulation currently requires companies to keep records for 18 months.
“This is a very, very important program even though it’s very seldom used. But when it’s used it’s absolutely critical,” Nunes said of the NSA phone records program. Without it, he explained, “if an attack happens and you have to run a number, you won’t be able to do it. That’s the risk you take.”
