COPIED FROM THE WASHINGTON POST
Some surveillance powers to expire unless Senate acts
In the run-up to this evening’s Senate showdown over National Security Agency surveillance, Sen. Rand Paul (R-Ky.) has vowed to end the agency’s mass collection of Americans’ phone records, even as President Obama is urging passage of a compromise bill that would shut down that NSA program but also preserve several other spying powers.
The Senate has only hours to act. At midnight Sunday, the surveillance authorities — all created under the USA Patriot Act — are due to lapse.
“So what’s the problem?” Obama said in his weekly radio address Saturday. “A small group of senators is standing in the way. And unfortunately, some folks are trying to use this debate to score political points. But this shouldn’t and can’t be about politics. This is a matter of national security.”
Obama urged lawmakers to “put the politics aside” and pass the USA Freedom Act. That bill, the product of months of compromise between Republicans and Democrats, the administration and privacy groups, won House approval by an overwhelming 338-to-88 vote earlier this month.
It would carry out a goal that Obama announced nearly 11/2 years ago: to end the NSA’s bulk collection of phone metadata. Under the bill, the agency would stop future gathering of billions of call records — times, dates and durations. Instead, the phone companies would be required to adapt their systems so that they can be queried for records of specific terrorist suspects based on individual court orders. The bill also would renew other expiring investigative powers that the FBI says are critical.
But a handful of senators who want to see stronger reforms and some who would prefer that the NSA program remain as is, have effectively blocked action on the bill.
On Friday, Obama singled out by name Senate Majority Leader Mitch McConnell (R-Ky.), who, a week ago Saturday, failed in a series of efforts to extend the NSA program for 60 days, a week, or even one day. “I’ve indicated to Leader McConnell and other senators, I expect them to take action and take action swiftly,” Obama said after meeting with Attorney General Loretta E. Lynch in the Oval Office.
“Heaven forbid,” Obama said, “we’ve got a problem where we could have prevented a terrorist attack or apprehended someone who was engaged in dangerous activity, but we didn’t do so simply because of inaction in the Senate.”
Obama didn’t name Paul, a GOP presidential hopeful. But Paul has made ending “illegal NSA spying” a cornerstone of his campaign and has cast Obama as his foil. An online ad by America’s Liberty PAC, a group run by Paul allies, features the senator’s head superimposed on a hulking wrestler gearing up for a showdown with “the head of the Washington spy machine, Barack Obama” in “the biggest brawl for liberty of the century.”
On Saturday, Paul said in a statement, “I will force the expiration of the NSA illegal spy program.”
The NSA bulk collection of phone records began in secret after the Sept. 11, 2001, attacks and was later authorized, also in secret, by a court under Section 215 of the Patriot Act. The continuation of the program and its justification were revealed in 2013 by former agency contractor Edward Snowden.
Obama also has called for an end to the NSA mass harvesting of records. But he wants to preserve the authority that has been used to justify that collection — Section 215 of the Patriot Act — because the FBI says it is useful in individual terrorism investigations.
A Paul campaign spokesman on Saturday declined to clarify whether Paul was seeking an end to Section 215, or just wanted to end the NSA bulk collection program.
Even if on Sunday a vast majority of senators agree to proceed to debate on the Freedom Act, Senate rules would allow Paul to force about five days of debate over the issue, which would lead to a temporary halt to the NSA collection and the surveillance authorities that are expiring June 1.
One of Paul’s best friends in the Senate, Sen. Mike Lee (R-Utah), is a lead sponsor of the Freedom Act. Lee on Friday said he has “made a strong case” to Paul about voting for the bill — or at least not blocking a floor vote. “I’ve been very clear about what I would like to see happen. But Rand and I, of course, don’t have the same ultimate outcome in mind. I like the USA Freedom Act. I think it’s a good solution to a pretty complicated problem. And he doesn’t support it.”
Lee summed up the Senate state of play: “We face a binary choice: We can either pass the House-passed USA Freedom Act as is and get it to the president’s desk by Sunday at midnight. Or we can let [Section 215 and other authorities] expire.”
A spokesman for Senate Minority Leader Harry M. Reid (D-Nev.) accused McConnell of manufacturing the crisis. “If Sen. McConnell cannot convince Senator Paul, his fellow Kentuckian whom he endorsed for president, to back off his filibuster threat, then Senator McConnell will have no one but himself to blame for allowing crucial national security tools to expire on his watch,” spokesman Adam Jentleson said.
Some of the tools that are set to lapse are not controversial and have been renewed in the past, Obama said in his radio address. They include the ability to seek a “roving wiretap” to keep up with suspected terrorists or spies who constantly switch out cellphones. Another power — never used — enables wiretaps on suspected “lone wolf” terrorists who cannot be directly tied to a terrorist group.
One of the most important, officials say, is Section 215. That authority permits the government to obtain all types of records on an individual as long as they are relevant to a foreign terrorism or espionage investigation.
Rep. Adam B. Schiff (D-Calif), the top Democrat on the House Select Committee on Intelligence, said national security officials may be able to rely on “workarounds” to the lack of Section 215 authority in some cases but not others. “Unquestionably, there’s going to be a disruption in the capabilities,” he said, adding that the situation “won’t be optimal by any means.”
House Judiciary Chairman Bob Goodlatte (R-Va.) said: “If the Senate chooses to allow these authorities to expire, they should do so knowing that sunset may be permanent. Nearly every member of the House of Representatives demands reform and wants to end the NSA’s bulk collection of data. No coalition exists for a clean reenactment of Section 215, and it is highly unlikely that a short-term reauthorization would pass in the House.”
On Friday, the American Civil Liberties Union and the Tea Party Patriots held a joint conference call with reporters to push for the sunset. Unlike Paul, they have not called for the repeal of the entire Patriot Act, but they agree with him that the Freedom Act does not go far enough. They say it is better to let the current powers lapse and have a full debate about the proper scope of government surveillance.
“When the ACLU and the Tea Party Patriots can agree on something, then Congress needs to listen,” ACLU Executive Director Anthony D. Romero said.
Critics, including the ACLU, say that the government has not proved these surveillance tools have value. The NSA bulk collection, for instance, has not thwarted any plot inside the United States, according to U.S. officials.
But the Obama administration said gauging value by plots thwarted is, as a senior administration official put it, is “the wrong metric.” These authorities, she said, are “the building blocks of a national security investigation” and are used to “identify connections between terrorist suspects and identify and build out their network.”
The Freedom Act also would end bulk collection of records under other national security authorities, including national security letters. It would require the Foreign Intelligence Surveillance Court, which meets in secret, to declassify significant legal decisions and provide for an advocate for the public’s privacy rights at the court, which generally hears only the government’s cases for a wiretap or other surveillance order. And it would grant technology companies more leeway to report on the scale of national security data requests.
The bill also contains a six-month transition period during which the NSA would work with phone companies to ensure that they can set up their systems to quickly search for records and send them to the agency.
Since last weekend, NSA wind-down teams were placed on a “hot standby,” which included contacting phone companies with a plan of action for shutting down the bulk collection. The actual shutdown time is about eight hours, officials said.
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