Showdown in the Senate Stalls Patriot Act Extension

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The USA Freedom Act failed to clear a procedural hurdle in the Senate during a session that stretched into the very early hours of Saturday morning. Senators also blocked a two-month extension of Section 215 of the USA Patriot Act, which has been broadly interpreted to allow the National Security Agency to conduct mass surveillance on law-abiding Americans, in a showdown between two Kentucky senators.

Senate Judiciary Committee Chairman Richard Burr, R-N.C., introduced substitute language of the USA Freedom Act. The Senate version of the bill is different, Burr says, because it “provides a longer transition period to ensure that the metadata collection process moves properly to the carriers” and “contains a bipartisan approach which would provide the government with advance notice of a carrier’s intent to change its data retention policies.”

The new language of the USA Freedom Act was a nonstarter in the Senate. The upper chamber blocked motion to proceed by Majority Leader Mitch McConnell, R-Ky., on the bill in a 57-42 a vote. The motion required 60 affirmative votes. Even if the Senate did proceed, House Republicans, including Rep. Jim Sensenbrenner, R-Wis., warned that the new language would not have the votes to pass the lower chamber.
“Senator Burr’s proposal to plug the so-called ‘holes’ in the USA FREEDOM Act is dead-on-arrival in the House. His bill is not stronger on national security, it is just much weaker on civil liberties,” Sensenbrenner said on Friday. “This is nothing more than a last-ditch effort to kill the USA FREEDOM Act, which passed the House 338-88.”

“If the Senate coalesces around this approach, the result will be the expiration of important authorities needed to keep our country safe,” he added.

McConnell tried to move forward with a simple two-month reauthorization of Section 215 of the USA Patriot Act, which expires on May 31. McConnell could muster only 45 votes, far short of the 60 votes required.

The scene got even more interesting when McConnell began making motions for unanimous consent to shorten the length of extension of the provision. The Republican leader first tried to extend the provision to June 8, but his home-state colleague, Sen. Rand Paul, R-Ky., was not having it.

“Reserving the right to object, we have entered into a momentous debate. This is a debate about whether or not a warrant with a single name of a single company can be used to collect all the records, all of the phone records of all of the people in our country with a single warrant,” said Paul. “Our forefathers would be aghast. One of the things they despised was general warrants.”

Paul has proposed a series of amendments to any attempt to reauthorize Section 215, including giving Fourth Amendment protections to records held by third parties and placing limitations on Section 213, the so-called “sneak-and-peek” provision, to only terrorism and espionage investigations.

“I started out the day with a request for six amendments; I’m willing to compromise to having two amendments at a simple majority vote,” Paul stated before objecting to McConnell’s consent agreement. “I think that’s a very reasonable position, and if we can’t have that and we can’t have an extensive debate over something we’ve had four years to prepare for.”

Blocked by Paul, McConnell tried to shorten the reauthorization to June 5. Sen. Ron Wyden, D-Ore., objected. McConnell tried again, proposing extension to June 3. Sen. Martin Heinrich, D-N.M., blocked him. McConnell tried one last time, shortening the date to June 2. Paul objected.

Seeing no path forward on reauthorization early Saturday morning, McConnell conferred with Minority Leader Harry Reid, D-Nev., on how they should proceed with reauthorization as the Senate entered into a week-long recess.

Shortly before the Senate moved onto other business before recessing for the week, McConnell announced that members would come back to Washington on Sunday, May 31 for a final chance to reauthorize Section 215.

Whether the opposition seen on Saturday morning will last through the week or some sort of agreement will be worked out between Paul and Republican leadership to allow him to offer amendments remains is unclear. But the scene in the Senate was encouraging for those passionate about the protections guaranteed by the Fourth Amendment.