With the House and Senate at odds over what to do with expiring surveillance authorities, it’s likely Congress is headed toward another “cliff” of its own making, which is exactly what reformers want to push the legislative branch over.
“It’s time for the Senate to act,” Speaker of the House John Boehner (R-Ohio) told reporters Thursday, needling his counterpart in the Senate to take up the USA Freedom Act, legislation that passed the House on Wednesday. The measure makes modest reforms to the NSA’s bulk collection activities while also extending the expiring legal authority for that collection—Section 215 of the USA Patriot Act—through 2019.
As it stands now, Section 215 will expire on June 1. And comments made by Senate Republican leaders suggest that Congress will at least flirt with missing that deadline.
“We’re not taking up the House bill,” Sen. Richard Burr (R-N.C.), the chair of the Senate intelligence committee, told reporters Wednesday. He added that Senate Majority Leader Mitch McConnell (R-Ky.) has scheduled a vote for next week on a “clean” Section 215 extension.
The NSA’s telephone metadata collection program authorized by those provisions, which was revealed by former agency contractor Edward Snowden, has been hailed by both Burr and McConnell. The Majority Leader claimed during a similar debate last year that it was “one of our nation’s critical capabilities to gather significant intelligence on terrorist threats.” On Wednesday, Burr told reporters “that the program as designed is effective, and members are reluctant to change things that are effective just because of public opinion.”
The program’s defenders, however, have often struggled to provide any kind of evidence that bulk collection has prevented terrorism.
The program may also be illegal. The 2nd Circuit Court of Appeals ruled last week that the NSA went well beyond what the scope of Section 215 authorized it to do. That decision prompted Senate Minority Leader Harry Reid to lash out at those who, like McConnell and Burr, are pushing to sign off on the program again.
“You can’t reauthorize something that’s illegal,” he said in a floor speech Monday.
Watching from the wings are those who stand to benefit most from the disagreement among leadership—a caucus of civil libertarian lawmakers from both chambers who’d rather see Section 215 expire altogether.
That group includes Tea Party favorites who previously wielded brinkmanship during the government shutdown and debt ceiling melees of 2013.
Rep. Justin Amash (R-Mich.), one of the most outspoken critics of NSA surveillance, voted against the USA Freedom Act, claiming that the bill doesn’t go far enough, and that it even would codify bulk collection into law for the first time. A group of 87 lawmakers representing both parties joined Amash in opposing the legislation, with the majority of them saying the bill doesn’t do enough to rein in US spies’ domestic activities.
But not even Amash thinks June 1 will pass without Congressional action. He took to Twitter on Thursday to suggest that the Senate Majority Leader is involved in a long con to protect the NSA.
“By pushing for clean #PatriotAct, McConnell buys leverage to make #USAFreedomAct even worse. He wins unless pro-privacy forces unite,” Amash said.
“The greatest trick McConnell ever pulled was convincing the world he opposed the #USAFreedomAct.” he added, tacitly drawing comparisons between the senator and the devil, if he was channeling Keyser Soze’s iconic line in The Usual Suspects.
Whether the Majority Leader is playing games or not, he and Reid will still have to work around another unruly member of McConnell’s caucuses—both party and state—with presidential ambitions.
Sen. Rand Paul (R-Ky.), who promised this week to filibuster any clean reauthorization of Section 215, also played a key role in last December’s defeat of the USA Freedom Act.
The impasse could force lawmakers to scramble in an attempt to strike a deal on a short-term extension of Section 215. If the Senate decides it wants to attempt that, however, it must act soon—the House recesses on May 22.
The deal also would be a tough sell for McConnell, if a statement released Thursday by co-sponsors of the USA Freedom Act in both the Senate and House is any indication.
“The Senate should not delay reform again this year,” Sens. Pat Leahy (D-Vt.) and Mike Lee (R-Utah) said, along with Reps. Bob Goodlatte (R-Va.), John Conyers (D-Mich.), and Jim Sensenbrenner (R-Wisc.).
The lawmakers added that they “will not agree to any extension of the NSA’s bulk collection program, which has already been ruled unlawful by the Second Circuit Court of Appeals.”.
