Surveillance powers lapse; no Senate deal

Senate Majority Leader Mitch McConnell walks from the Senate chamber after gaveling open a special session Sunday to extend surveillance programs.
Senate Majority Leader Mitch McConnell walks from the Senate chamber after gaveling open a special session Sunday to extend surveillance programs.

WASHINGTON -- The National Security Agency lost its authority at midnight to collect Americans' phone records in bulk, after an extraordinary Sunday afternoon Senate session failed to produce an eleventh-hour deal to extend the fiercely contested program.

But the counterterrorism measures look likely to be revived in a matter of days. Senate Majority Leader Mitch McConnell, R-Ky., in an about-face, approved of a House-passed bill that would extend some of the anti-terror provisions that expired Sunday at midnight, while also remaking the bulk phone collections program.

Although the lapse in the programs may be brief, intelligence officials warned that it could jeopardize Americans' safety and amount to a win for terrorists. But civil-liberties groups applauded as Sen. Rand Paul, R-Ky., forced the expiration of the once secret program made public by NSA contractor Edward Snowden.

On Sunday night, the Senate voted overwhelmingly to begin a debate on a bill to curtail the program passed by the House.

The 77-17 vote was a turnabout just a week after the Senate narrowly turned the bill, known as the USA Freedom Act, away at McConnell's behest. Arkansas' senators, both Republicans, were split: John Boozman voted to consider the bill; Tom Cotton voted against consideration.

McConnell encouraged senators to vote for a bill that he still found deficient.

"I remain determined to working toward the best outcome for the American people possible under the circumstances," McConnell said. "This is where we are, colleagues -- a House-passed bill with some serious flaws, and an inability to get a short-term extend to improve the House bill."

But the Senate adjourned without final action on the bill after Paul asserted his prerogative under Senate rules to delay a final vote for a couple of days.

"This is what we fought the revolution over, are we going to so blithely give up our freedom? ... I'm not going to take it anymore," Paul said on the Senate floor, as supporters wearing red "Stand With Rand" T-shirts packed the spectator gallery.

Immediately after the vote, Paul took the floor and began his remarks by conceding the bill he opposes would eventually pass. But after he left the floor, he declared victory because the House bill would end the government's collection of phone records.

"The point we wanted to make is: We can still catch terrorists using the Constitution," he said.

Paul had earlier Sunday objected to a proposal from McConnell that would have extended less-controversial surveillance programs while the debate over the NSA telephone program continued.

McConnell then moved to a second option, a procedural move to take up the bill passed by the House, which he said the Senate would amend this week.

Paul's moves angered fellow Republicans and they exited the chamber en masse when he stood up to speak after the Senate's vote on the House bill.

"We shouldn't be disarming unilaterally as our enemies grow more sophisticated and aggressive, and we certainly should not be doing so based on a campaign of demagoguery and disinformation launched in the wake of the unlawful actions of Edward Snowden," McConnell said.

Sen. John McCain, R-Ariz., said Paul places "a higher priority on his fundraising and his ambitions than on the security of the nation."

The White House backs the House bill. White House press secretary Josh Earnest said in a statement: "The Senate took an important -- if late -- step forward tonight. We call on the Senate to ensure this irresponsible lapse in authorities is as short-lived as possible."

CIA Director John Brennan was among those warning that letting the authorities lapse will make America less safe.

Terrorists "are looking for the seams to operate within," Brennan said on CBS' Face the Nation. "This is something that we can't afford to do right now."

The NSA already had begun winding down the phone collection program in anticipation that it would not be renewed. To ensure the program has ceased by the time authority for it expires at midnight, the agency planned to begin shutting down the servers that carry it out at 3:59 p.m. Sunday. That step was reversible for four hours but after that, rebooting would take about a day.

The NSA collects what it calls metadata -- records that include the numbers called from a phone and the length of calls, but not the content of the conversations.

In addition to the bulk phone collections provision, two lesser-known USAPATRIOT Act provisions also lapse at midnight: one, so far unused, helps track "lone wolf" terrorism suspects unconnected to a foreign power; the second allows the government to eavesdrop on suspects who continually discard their cellphones. The House bill, backed by the White House, extends those two provisions unchanged, while remaking the bulk collection program over six months by giving phone companies the job of hanging onto records the government could search with a warrant.

The program was established by the George W. Bush administration without congressional authorization late in 2001. In 2006, after passage of the USAPATRIOT Act amendments, the Bush administration won approval from the Foreign Intelligence Surveillance Court, which meets in secret, to continue the program under the act's Section 215.

Over the past two years, the act has come under increasing criticism from a coalition of liberal Democrats and libertarian-leaning Republicans. The Obama administration last year proposed ending the government's collection of telephone data and instead having telephone companies hold the information. Obama said, however, that he would keep the current program intact until Congress acted on an alternative.

A federal appeals court this spring ruled that the act did not provide legal authority for the collection of millions of telephone records. But noting that the law was about to expire, the judges said they would put their ruling on hold for a few weeks while Congress debated whether to renew it.

The version of the bill passed by the House 338-88 on May 13, would require the NSA to get court warrants to obtain individual phone records held by telecommunication companies.

The FBI's use of the USAPATRIOT Act to collect hotel, travel, credit card, banking and other business records in national security investigations would also be extended under the House bill. Law enforcement officials say the collection of those business records is more valuable than the bulk phone collections program. Ongoing investigations would be permitted to continue even after authority for the programs lapses.

Senators said they will offer a number of changes to the legislation.

Amendments will be aimed at ensuring the government will be able to obtain and search phone records held by telecommunications companies in a timely manner, said Sen John Thune, R-S.D., and Sen. Dianne Feinstein of California, the top Democrat on the Senate intelligence panel.

The amendments likely would require the government to certify that technology exists for the government to access the records, and require the companies to notify the government if they revise what kind of records they hold and for how long they hold them, Feinstein said.

With an expiration, the government won't be able to collect and store bulk phone records. Instead, investigators will have to get a court warrant and go to phone companies to obtain individual records.

Information for this article was contributed by Erica Werner and Ken Dilanian of The Associated Press; by Chris Strohm, Kathleen Hunter, David Lerman, Justin Sink, Billy House, Toluse Olorunnipa, Derek Wallbank, Michelle Jamrisko and David Weigel of Bloomberg News; by Lisa Mascaro of the Tribune News Service; by Jennifer Steinhauer and Jonathan Weisman of The New York Times; and by Mike DeBonis and Ellen Nakashima of The Washington Post.

A Section on 06/01/2015

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