It’s “Sunday, Sunday, Sunday,” as that metalhead American Liberty PAC ad put it. Key provisions of the Patriot Act expire tonight, including Section 215, which gives the NSA license to collect bulk phone metadata.
Last week there was plenty of speculation over whether Section 215 would expire and what stance its chief persecutor, Senator Rand Paul, would take when the Senate reconvened. If he capitulates and backs either a clean extension of the Patriot Act or the USA Freedom Act, the metadata program will continue and accusations that Paul was grandstanding to entice his libertarian base will be sharpened.
Fortunately that doesn’t seem to be happening. The Patriot Act’s going down, Paul’s yelling “timber,” and Mitch McConnell better move if he wants to save the government’s expansive surveillance powers:
In a statement to POLITICO Saturday, Paul warned that he would not consent to any efforts to pass either an extension of current law or the USA Freedom Act, a reform bill passed overwhelmingly by the House earlier this month.
“So tomorrow, I will force the expiration of the NSA illegal spy program,” Paul said.
First to Mitch McConnell, who’s been forced to watch his pick for the 2016 Republican nomination, fellow Kentucky senator Paul, foil him repeatedly. McConnell was hoping to ram through a clean extension of the Patriot Act by pushing the opposition up against tonight’s deadline. Paul resoundingly called his bluff by objecting every time McConnell tried to end debate. And anyways it’s unlikely an unmarked Section 215 will ever clear the 60-vote threshold in the Senate.
McConnell’s only choice is to support the USA Freedom Act, a bill passed overwhelmingly by the House of Representatives that dilutes the NSA’s snooping powers by housing metadata collection with the phone companies rather than the government. It’s a noisome prospect for McConnell and other hawks, who worry that USA Freedom won’t mandate the telecoms to keep Americans’ phone records so they can be turned over the NSA. It’s also a problem for Paul, who wants McConnell to allow amendments to USA Freedom:
Paul’s office has declined to say exactly which two amendments he would demand a vote on, but it has issued a list of ten possible measures he has co-written with [Senator Ron] Wyden.
On that longer list are amendments to close a “backdoor search loophole” that allows the government to collect Americans’ communications under a provision meant to target foreigners. One measure would prevent the government from forcing companies to give them “backdoors” to crack their encryption, and another would rein in an expansive executive order that has been used to condone various types of government spying.
This is where McConnell is damned if he does, damned if he doesn’t. If he allows amendments to the USA Freedom Act, he’ll have to prolong the debate past midnight when Section 215 expires. If he doesn’t allow amendments, he’ll try to clip off debate before midnight in order to pass the final package. But that requires unanimous consent and Paul is prepared to object.
Doing so will entail a massive expense of political capital on Paul’s part. His fellow senators were already grumbling last week about his hard-nosed anti-NSA tactics and now even President Obama, who’s always seemed lukewarm about renewing Section 215, is warning in dire tones about letting the Patriot Act expire—a fairweather civil libertarian if ever there was one. But Paul’s also been endorsed for president by the Senate majority leader, played a minimal role in 2013’s government shutdown, and has Democratic allies like Senator Ron Wyden to back him up. He’s got plenty of chips to push onto the table.
It’s unlikely Paul can stymie the Patriot Act in perpetuity. Senator Mike Lee is already claiming that USA Freedom Act advocates have 60 votes, which makes this a matter of when rather than if. What Paul can do is stall. However he goes about that, it seems inevitable that the lights will go out on the NSA’s metadata collection apparatus for a few days.