With the House out for Memorial Day, it’s up to the Senate to handle the coming expiration of key provisions of the Patriot Act.
Senior Obama administration officials made a last-second push Thursday for the Senate to immediately pass a surveillance-reform bill in order to avoid imperiling "critical" national security tools due to expire at the end of the month.
The officials, taking their plea directly to reporters, said the Senate must end its brinkmanship over the House-passed USA Freedom Act and approve the measure before the upper chamber breaks for its scheduled Memorial Day recess.
"Any action other than the Senate acting on the USA Freedom Act will result in a very uncertain future for these national security authorities," a senior official told reporters late Thursday.
The Senate has been locked in a high-stakes showdown over how to extend the expiring surveillance provisions of the Patriot Act, due to sunset June 1, including Section 215, which the NSA uses to justify its phone-records dragnet. That mass surveillance program was exposed publicly by former intelligence contractor Edward Snowden two years ago.
The Freedom Act, which passed the House overwhelmingly last week, would effectively end the bulk collection regime and replace it with a system relying on cooperation from telecom companies. It also would extend the expiring surveillance provisions of the Patriot Act, but with several new transparency and oversight reforms.
Though the measure passed the House 338-88, several Republican senators, including Majority Leader Mitch McConnell, have said it will weaken the NSA's ability to detect and thwart terrorist plots.
Because the House already has recessed for the month, the administration said the Freedom Act was the "only responsible path forward for these critical authorities is passage of that bill in the Senate." Any other approach, the officials said, would jeopardize the Patriot Act's national security powers—which are far broader than the NSA bulk-records program—and create "both operational reliability [problems] and the legal uncertainty" for the intelligence community.
"We want to make clear what we see as a very unclear and risky path for these authorities if USA Freedom doesn't pass," an official said.
The legal uncertainty, the official said, stemmed largely from a federal appeals court ruling this month that declared the NSA bulk-data program illegal.
The White House call with reporters is part of a sharp escalation in recent days of the administration's involvement over Patriot Act negotiations on Capitol Hill. Earlier Thursday, the senior administration officials sat down with about a half-dozen senators in the White House situation room to discuss the gridlock on Capitol Hill regarding the Patriot Act. Sen. Joe Manchin, a West Virginia Democrat, said it was the first such briefing he had attended.
Earlier this week, the Justice Department sent a memo to some lawmakers informing them that the bulk collection program will need to begin winding down on Friday in order to be completely shut down by June 1.
But the bill's progress has been gummed up in the Senate, where McConnell and other GOP defense hawks has instead pursued a "clean" reauthorization of the expiring provisions.
McConnell on Thursday moved to set up votes on both a two-month extension and the Freedom Act. Those votes will occur Saturday unless the Senate unanimously agrees to move more quickly.
Some senators continue to insist they can pass a short-term "clean" reauthorization that the House could potentially adopt next week in a pro forma session. But it is unclear if the House would be willing to agree to any extension—and many members have said they will tolerate no such extension under any circumstances.
A senior official also rejected assertions raised this week by Senate Intelligence Chairman Richard Burr and other Republican defense hawks that the Freedom Act language may need to be altered to lengthen the 180-day transition it allows for the NSA to move from its current bulk collection regime to the new system. That system would rely on telecom companies to keep the metadata records and hand them over to the government on an as-needed basis following judicial approval.
If the 180 days is not long enough for the transition to take place, Congress can pass additional legislation down the road to address that, the official said.
"There is no reason to address that now," the official said. "First we can pass USA Freedom with the 180-(day) implementation and then … we can come back if there's a problem."
The officials also took extreme issue with suggestions by some senators that phone companies may need to be subject to a data-retention mandate under the new system. Such a suggestion is misleading, they said, because companies already maintain their business records without a mandate.
This story has been updated.
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