In the midnight hour Saturday, the Senate failed to pass legislation that would end the National Security Agency’s collection of Americans’ phone records and renew surveillance tools that the Obama administration says are vital to investigating terrorists.
But in an unexpected twist, Mitch McConnell, the Senate majority leader, announced that lawmakers will come back early from their Memorial Day recess and reconvene on May 31, mere hours before all the surveillance programs are set to expire when the clock turns over to June 1.
The stage is now set for a down-to-the wire drama, the outcome of which depends largely on whether the House of Representatives also returns early to Washington. It has already passed the legislation, called the USA Freedom Act, and is set to reconvene on the evening of June 1. Unless lawmakers change their plans, the surveillance programs will almost certainly expire, even if only for a few hours.
In remarks on the Senate floor, McConnell said he hoped to offer “one more opportunity to act responsibly” and not let the government’s surveillance authorities lapse.
As the senators debated, the NSA was already shuttering its huge database of phone records, content with the USA Freedom Act’s provision to require telephone companies to store those records instead. Intelligence officials say the phone records program isn’t that useful and has essentially been more trouble than it’s worth because of the enormous controversy that erupted after it was revealed in 2013 by Edward Snowden.
But if Congress fails to renew other provisions of surveillance law by by June 1, the government will lose two tools that, while unpopular with many civil libertarians, had attracted less debate than the phone records program. So-called roving wiretaps, which allow the government to intercept a terrorism suspect’s communications regardless of what device he’s using, as well as the authority to monitor individuals who aren’t connected to any known terrorist group, are both in danger of expiring.
Attorney General Loretta Lynch told CBS News this week that if those tools lapse, “we will lose important eyes on people” who are trying to harm Americans.
Senator Barbara Mikulski, a Maryland Democrat and staunch backer of the NSA, excoriated her colleagues from the Senate floor for failing to pass legislation that she said would keep intelligence and law enforcement agencies from “going dark” in their hunt for terrorists.
“I am so sorry we are going home,” Mikulski said. “I worry about our country and I worry about our ability to govern.”
In a bizarre scene of impromptu legislative haggling, McConnell attempted several times to introduce a compromise that would extend the surveillance programs by a few days beyond June 1, each time proposing fewer and fewer days, until he was down to just one. He met with repeated objections from fellow Republican Senator Rand Paul of Kentucky, one of the most vocal surveillance opponents of the surveillance programs in Congress.
How much negotiating the Senate can do between now and May 31 while lawmakers are on vacation or back in their home states is unclear. Senate Minority Leader Harry Reid of Nevada complained that if senators from Western states were required to come back a day early, there was no way they could get to Washington before 5:30 p.m.
House lawmakers also seemed in no mood to negotiate on their bill, which achieved overwhelming support earlier this week.
In a statement Friday afternoon, Representative Adam Schiff, the top Democrat on the House Intelligence Committee, warned senators that it was up to them to keep vital surveillance tools from expiring while strengthening privacy protections for Americans.
“The Senate should not throw away a hard-fought compromise in the House and jeopardize both the reforms it enacts and the other provisions that it extends,” Schiff said. “And the Senate should make no mistake, if it does not pass the bill and the provisions expire—it will have a lot of questions to answer about why it decided to play legislative chicken with important intelligence tools.”