House-approved NSA reform bill fails in Senate

Senate Majority Leader Mitch McConnell (R-Kentucky) was pushing for a two-month extension of the Patriot Act, which would have allowed the Senate to debate the issue more leisurely after it came back from the Memorial Day recess, but his extension proposal failed by a 45-54 vote.

Senator Dean Heller (R-Nevada), a co-sponsor of the extension bill, pointed out that the vehement opposition to the extension bill by Senator Rand Paul (R-Kentucky) – who also vociferously opposed the House bill – doomed any attempt to extend the Patriot Act, even if for only two months.

In floor remarks at midnight, Paul demanded simple-majority votes on two amendments to the House bill as a condition to drop his opposition to a temporary extension of the Patriot Act. “Our forefathers would be aghast,” he said about the NSA’s surveillance program.

Senator John Cornyn (R-Texas), McConnell’s top leadership deputy, said that “Sen. Paul is asking for something that nobody will agree to.” The amendments Paul is seeking, he said, would not comport with Senate rules.

McConnell refused to allow a vote on Paul’s proposals and ended debate,

At about 2:00 a.m., in a desperate effort to gain some time, McConnell asked for unanimous consent to extend the Patriot Act for a week, but Paul objected. Two Democrats — Senator Ron Wyden (Oregon) and Senator Martin Heinrich (New Mexico) also opposed the one-week extension – the three also objected to four-day, two-day, or even one-day extensions – and sometime after 3:00 a.m. McConnell gave up and announced that the Senate would adjourn until 31 May, on the midnight of which Section 215 of the Patriot Act expires.

Cornyn, who supported extending the Patriot Act, said the Senate was divided into three groups: There are those who want a “straight extension [of the Patriot Act], those who like USA Freedom, and those who like nothing.”

Counting heads in the various procedural votes which took place Friday night and Saturday, it appears that:

• Those who want an extension of the Patriot Act, in order to allow more time for deliberations, are in a distinct minority
• Supporters of the USA Freedom Act cannot mobilize sixty senators, the necessary super majority to advance the bill
• This means that those who would not mind to see Section 215 expire on 31 May are likely to carry the day

Those who support Section 215 have not lost all hope, though. Senator John McCain (R-Arizona), when asked whether it would be better to have USA Freedom Act rather than allow Section215 expire, said: “There are some programs that are affected by ‘Freedom USA’ that I would be very concerned about shutting down”— “but obviously anything is better than shutting down the whole operation.”

McCain added that “you can argue whether we should be doing the mega data thing but you can’t argue that it’s a good idea to shut down the whole thing.”

The Guardian reports that Republicans with strong national security views such as McCain and Representative Tom Massie (R-Kentucky) noted that the failure of the Senate to pass the House bill is not the result of the Republican caucus a accepting Senator Paul’s views – on the contrary: Most Republican senators who took to the Senate floor denounced the bill as going too far in emasculating the NSA and the FBI and in imposing unreasonable limits on intelligence gathering in the age of terrorism.

In unusually lengthy and detailed floor remarks to start the Senate’s business Friday morning, McConnell said the system established under the House bill is “untried” and would be “slower and more cumbersome than the one that currently helps keep us safe.”

“At a moment of elevated threat, it would be a mistake to take from our intelligence community any of the valuable tools needed to build a complete picture of terrorist networks and their plans,” McConnell said. “The intelligence community needs these tools to protect Americans.”

Senator Paul, however, managed to convince just enough Republicans to join with all of the Democrats to block any extension of Section 215 – and, in all likelihood, to allow the Patriot Act to expire at the end of the month.

The Washington Post notedthat the growing frustration with Paul by fellow Republicans became increasingly obvious as the long night wore on. Paul held the Senate floor for nearly eleven hours Wednesday to oppose any extension of current law, and many Republicans had assumed that that “performance,” as McCain called it, would suffice.

“There’s a new breed in the Senate, and we have seen the manifestation of it,” McCain said.” One or two or three are willing to stand up against the will of the majority. Some time ago, the Senate people would sit down and try to work things out. And obviously these individuals don’t believe in that. But I’m sure it’s a great revenue raiser.”

Republicans in the Senate were deeply divided, but the House saw a rare agreement between Republicans and Democrats. Thus, when Senate Intelligence Committee chairman Richard Burr (R-North Carolina) on Thursday proposed extending the USA Freedom Act’s six-month transition away from bulk data collection to two years, House Republicans and Democrats were quick to reject his proposal.

Representative James Sensenbrenner Jr. (R-Wisconsin), a lead author of the USA Freedom Act, called Burr’s proposal a “last-ditch effort to kill” the House bill. “If the Senate coalesces around this approach, the result will be the expiration of important authorities needed to keep our country safe,” he said in a statement.

“[T]he Senate should make no mistake, if it does not pass the bill and the provisions expire — it will have a lot of questions to answer about why it decided to play legislative chicken with important intelligence tools,” said Representative Adam Schiff (D-California), ranking Democrat of the House Select Committee on Intelligence.

The Obama administration has argued in favor of adopting the House bill, saying that passing it would be the only safe way to avoids legal and operational issues.

Extending Section 215 as it is, the White House said, would be risky legally, as earlier this month a federal appeals court in New York ruled that the NSA program was unlawful because it went beyond what Section 215 had authorized. The court held off on ending the program only because it noted that Congress was debating its future and might change the program or change the law to expressly authorize it.

The administration also said that in addition to the bulk records program, Section 215 is essetial to the FBI in obtaining specific records of individuals in counterespionage and counterterrorism investigations. A second tool the bureau considers vital is the “roving wiretap,” which allows the FBI to monitor suspected spies or terrorists who switch frequently from one phone to another.

Senator Charles Grassley (R-Iowa), chairman of the Judiciary Committee, said: “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.”