Down to the Wire on the Patriot Act

Julian Hattem has a good piece in the Hill on the current state of play in the Senate with respect to expiration of the Patriot Act provisions in less than two weeks:

Sen. Mitch McConnell on Tuesday said he would allow a vote on legislation overhauling the nation’s surveillance programs, which could give him more leverage in the fight over the National Security Agency’s future. The move means the Senate will vote this week on the USA Freedom Act—but it does not guarantee its passage. While the bill was overwhelmingly approved in a 338-88 House vote last week and is backed by the White House and Speaker John Boehner (R-Ohio), McConnell (R-Ky.) and Senate Intelligence Committee Chairman Richard Burr (R-N.C.) both oppose it. So do a number of other hawkish Senate Republicans who argue it would endanger national security by preventing the government from holding metadata collected from phone calls. McConnell and GOP leaders expect this week’s vote to fail, which could give momentum to the Senate leader’s favored approach: a short-term extension of the Patriot Act provisions that authorize the NSA’s data collection. . . . Congress is set to begin a weeklong Memorial Day recess at the end of the week. That means lawmakers would have to pass some kind of NSA legislation by Friday. Senate backers of the USA Freedom Act have acknowledged they don’t currently have the 60 votes necessary to overcome a filibuster. “I can’t count to 60 right now,” co-author Sen. Mike Lee (R-Utah) said on C-SPAN’s “Newsmakers” over the weekend. Last year, a similar version of the USA Freedom Act came two votes shy of overcoming a GOP-led filibuster shortly before Democrats lost control of the Senate. Opposition is likely to be stronger now, with Senate Republicans holding 54 seats. . . . Assuming McConnell’s plan does work to perfection, it’s still unclear what the endgame might be. Burr and Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Senate Intelligence Committee, have said they are working on “backups” in case the USA Freedom Act doesn’t get the votes. Feinstein’s plan would require phone companies to hold onto the records for a certain period of time, which would satisfy some lawmakers’ concerns but cause privacy advocates to rebel. Burr’s, meanwhile, is expected to extend the period of time allotted for the switch to a new system. The USA Freedom Act gives the NSA six months to end its bulk phone records program and switch to the new method, but some critics have worried that is not long enough to prove it will work. Even if it came to that, it’s almost a sure bet that the House wouldn’t act on those plans until after it returned from next week’s recess, meaning the Patriot Act provisions would expire, at least for a short while.

I have my anxieties about the USA Freedom Act, but let's be clear here: Congress would be totally irresponsible to let the month go by without sending a bill to the President's desk. I do not begrudge the Senate holdouts their reservations, but brinksmanship has no place in this debate. Sen. McConnell's idea of a clean extension was plausible until the Second Circuit ruled, but now it makes little sense. It would merely punt from the legislature to the Supreme Court---the next step in the appellate ladder---the decision as to whether the 215 program is or is not authorized by statute. It would not resolve legal questions. It would merely extend the agony. McConnell's idea of a short-term extension is more reasonable. It might, under the right circumstances, give a window in which to resolve differences if the votes to move the USA Freedom Act through the Senate really are not there. On the other hand, if the point is merely a stopgap measure to be followed by another one---and another one after that---then it's worthless. It's bad enough to run the budget that way. Under no circumstances should Congress be running national security legislation on the basis of continuing resolutions. Sen. Burr's and Sen. Feinstein's ideas are potentially constructive; I'm particularly attracted to Sen. Feinstein's idea about some form of data retention requirement for the telephone companies. The lack of this is the biggest weakness in the current version of the bill. But it's a bit late in the game for major substantive changes to the law. At this point, what Congress needs to do is make a decision: Does it want a compromise bill along the lines of the USA Freedom Act, or does it want the 215 program to disappear in a puff of smoke? I'm skeptical that we can really reopen the package at this stage. For what it's worth, my message to the holdout Republicans is this: Let the bill proceed, vote against it, and register your concerns in floor speeches explaining your votes. There are good reasons to be concerned about the USA Freedom Act, which is an imperfect bill from whatever perspective you approach the subject. But letting the current authorities lapse should be unthinkable.