Two provisions of the Patriot Act and one other legal provision granting surveillance powers expired on Sunday night, as the U.S. Senate failed to pass either a short-term Patriot Act extension or the House-approved USA Freedom Act, which would revise parts of that law. Jamie Dupree wrote a good overview of the key points of contention, including the National Security Agency’s bulk data collection practices. Julian Hattem previews the next likely steps in the Senate and House (assuming the Senate approves an amended version of the USA Freedom Act this week). Carl Hulse analyzed the “lose-lose-lose result” for Senate Majority Leader Mitch McConnell, who prefers not to curtail NSA surveillance powers but arguably “overplayed his hand.”
How Congress will resolve this dispute remains unclear, but we have learned one thing from the last ten days: Iowa’s Senators Chuck Grassley and Joni Ernst oppose the current bipartisan compromise on how to revise the Patriot Act. For Ernst, the expiring Patriot Act provisions “are critical to the safety and security of our country”–a view similar to Representative Steve King’s reasons for voting against “data disarmament” when the House considered the USA Freedom Act.
In Grassley’s more nuanced view, Congress should enact “meaningful reform by ending the NSA’s bulk collection of Americans’ telephone records under Section 215” of the Patriot Act, while allowing the government to gather such information in a targeted way. Grassley also objects to how the USA Freedom Act would reform the Foreign Intelligence Surveillance Court.
Details on the relevant Senate votes are after the jump, along with statements from Grassley and Ernst. I’ve also noted which Republican senators who are running for president supported either the USA Freedom Act or a short-term Patriot Act extension.
UPDATE: Grassley and Ernst split on June 2 as the Senate passed the USA Freedom Act. Details on their votes are below, along with their explanations. While Iowa’s two Republican senators have voted differently on a handful of amendments or motions related to consideration of other bills, today’s votes represent their first major policy disagreement since Ernst was sworn in.
Scroll to the end of this post for details on how the GOP presidential candidates voted today.
Perception: Republican Senator and presidential candidate Rand Paul is taking credit for forcing the expiration of some surveillance powers, in part because he spent hours filibustering the Patriot Act on May 20. Additionally, Paul and two Democratic senators “stood and objected last week to repeated attempts by McConnell to obtain unanimous consent for shorter- and shorter-term extensions of the Patriot Act.” This past weekend, Paul blocked the Senate from passing the USA Freedom Act in hurry-up fashion. He is holding out for votes on at least two amendments that would go further in limiting NSA surveillance than the USA Freedom Act currently does. Paul and Democrat Ron Wyden have proposed nine amendments relating to privacy concerns.
Reality: Paul’s theatrics have not “done much to drive the substantive policy outcome” on this issue, according to Julian Sanchez, who advocates for privacy at the libertarian CATO Institute. As Sanchez pointed out in this piece by Timothy B. Lee, other members of Congress from both parties “did the hard work of building a consensus for the USA Freedom Act” and getting it through the House with a large majority vote.
Two days after Paul’s filibuster (celebrated with countless #StandwithRand hashtags and merchandise sales to benefit Paul’s presidential campaign), McConnell made a key tactical error. The plan was “to bring the USA Freedom Act up for a vote, let it fail, and then tell senators their only alternative was a short-term renewal of the Patriot Act with no changes.”
The Senate stayed in session so late on May 22 that the roll call votes didn’t happen until after midnight. As expected, the motion to proceed to debating the USA Freedom Act fell short of the 60 votes needed for cloture. 57 senators (all the Democrats plus twelve Republicans) voted to bring the bill to the floor, but most of the GOP caucus, including Grassley and Ernst, voted no (roll call). Of the GOP presidential candidates who serve in the Senate, Ted Cruz voted to proceed with debating the USA Freedom Act, while Paul, Marco Rubio, and Lindsey Graham voted no. (Rubio and Graham come at this issue from the opposite perspective as Paul: they want fewer limits on intelligence-gathering.)
Less than an hour later, a motion to proceed with a short-term extension of the unrevised Patriot Act came to the floor. Most of the Senate Republicans, including Grassley and Ernst, voted yes, joined by two Democrats. But 54 senators voted no (roll call). Rubio and Graham voted for the short-term Patriot Act extension; Paul and Cruz voted against it.
McConnell now had less than ten days to get something through the Senate before the three controversial surveillance provisions expired on May 31. But as mentioned above, a few senators blocked more short-term Patriot Act extensions.
With the deadline approaching, President Barack Obama urged the Senate to pass the USA Freedom Act this weekend. But Senate rules make it hard to move quickly on legislation, especially when one determined person (in this case Paul) keeps objecting to motions for unanimous consent.
An overwhelming majority of 77 senators voted to proceed to debating the USA Freedom Act on Sunday evening. Grassley and Ernst were among the seventeen Republicans who voted against taking up that bill, as were Paul and Rubio. Cruz voted to proceed with the USA Freedom Act, while Graham was absent for Sunday’s vote.
Grassley and Ernst explained their reasoning in written statements enclosed below. A Senate floor statement by Grassley from the May 22 debate describes his concerns with the USA Freedom Act in much more detail; you can read the full text at the end of this post.
Senators will debate the USA Freedom Act today, considering some amendments to scale back the limits on NSA surveillance. Trouble is, the House Republicans and Democrats who wrote the bill have warned, “The House is not likely to accept the changes proposed by Senator McConnell.”
Any relevant comments are welcome in this thread.
P.S. – Iowa’s four U.S. representatives split three ways when the House approved the USA Freedom Act last month. Democrat Dave Loebsack (IA-02) and Republican David Young (IA-03) supported the compromise. Republican Rod Blum (IA-01) opposed the bill, saying it did not do enough to protect Americans’ Fourth Amendment rights. Republican Steve King (IA-04) opposed the bill, saying “data disarmament” would deprive security agencies of information with great “investigative value.”
Statement from Senator Chuck Grassley, May 31:
Grassley Statement After Senate Begins Consideration of USA FREEDOM Act
Senator Chuck Grassley of Iowa, Chairman of the Senate Judiciary Committee, made the following statement after the Senate voted to begin consideration of the USA FREEDOM Act. Grassley voted against moving ahead on the bill. In addition to tonight’s statement below, click here to see a detailed statement Grassley inserted into the Congressional Record last week upon the initial vote to begin consideration of the bill.
“For months, I’ve been working with members of both houses of Congress from both sides of the political aisle to try to find a middle ground solution that would reauthorize and strengthen our critical national security authorities, while at the same time enacting meaningful reform by ending the NSA’s bulk collection of Americans’ telephone records under Section 215 and providing greater transparency and accountability to Congress and the American people. During that time, I’ve exchanged thoughts and ideas with the authors the USA FREEDOM Act as well as the leadership of the Senate Intelligence Committee.
“I continue to have serious concerns with the bill. I’m particularly concerned about the lack of certainty and security surrounding the provider-based system to which the bill would transition the telephone records program, the bill’s addition of an unprecedented “panel of experts” to challenge the government’s applications in the FISA court – a benefit we’d be extending to terrorists that typical criminals don’t have when federal judges approve traditional wiretaps or search warrants – and its implementation of a series of multilateral treaties related to nuclear terrorism and proliferation without important provisions that were requested by both the Bush and Obama administrations. These provisions would provide the Department of Justice with key tools to combat nuclear terrorists, including the ability to seek wiretaps to investigate them, and to pursue the death penalty upon their conviction, in appropriate cases.
“Now that the Senate has voted to proceed to consider the USA FREEDOM Act, I hope these concerns can be addressed through the amendment process so that we can enact reform that appropriately balances national security with the privacy and civil liberties of all Americans.”
Statement from Senator Joni Ernst, May 31:
WASHINGTON, D.C. – Tonight, the Senate voted to proceed on the USA Freedom Act. U.S. Senator Joni Ernst (R-IA) released the following statement on expiring provisions in the PATRIOT Act that enable the National Security Agency (NSA) to collect metadata.
“These provisions included in the PATRIOT Act are critical to the safety and security of our country. I supported a short-term extension which would afford the necessary time to achieve a consensus solution in Congress.
“However, I have serious concerns with delegating responsibility to telephone companies.
“We are engaged in a global war on terrorism and as this debate continues, we must be mindful not to put ourselves in a position that opens us up to intelligence gaps, especially at a time when we see increasingly complex and dangerous threats around the world.
“I remain committed to achieving a solution that provides Iowans and all Americans with the privacy and security they deserve.”
Floor Statement of Senator Chuck Grassley For the Record Reauthorization of Expiring USA PATRIOT Act Authorities Friday, May 22, 2015
Mr. President, I rise today to explain why I support a short term reauthorization of the national security authorities that expire on June 1, and why I will not vote for cloture on the latest version of the USA FREEDOM Act at this time. These authorities need to be reauthorized and reformed in a way that appropriately balances national security with the privacy and civil liberties of all Americans. I’m hopeful that during the next few weeks we can do a better job of doing just that.
I start with the premise that these are important national security tools that shouldn’t be permitted to expire. If that were to happen, there is little doubt that the country would be placed at greater risk of terrorist attack, at a time when we can least afford it. This isn’t exaggeration or hyperbole.
We’ve recently witnessed the emergence of ISIS, a terrorist organization that controls large swaths of Iraq and Syria, including, as of just days ago, the capital of the largest province in Iraq. ISIS is beheading Americans and burning its captives alive for propaganda value. And fueled in part by black market oil sales, ISIS reportedly has at least $2 billion.
The organization isn’t just sitting on that money. Members of ISIS and related groups are actively recruiting would-be terrorists from around the world to come to Syria. They are inspiring attacks, often using social media, in the West, from Paris, to Sydney, to Ottawa, and even here in the United States, in places like New York City, Ohio, and Garland, Texas. Director Comey has reported that the FBI has investigations of perhaps thousands of people in various stages of radicalization in all 50 states.
So this isn’t the time to let these various authorities expire. This isn’t the time to terminate the government’s ability to conduct electronic surveillance of so-called “lone wolf” terrorists – people that are inspired by groups like ISIS but don’t have direct contact with them. And this isn’t the time to end the government’s ability to seek roving wiretaps against terrorists. After all, this is a tool that prosecutors have used in criminal investigations since the mid-1980s.
Most of all, this isn’t the time to sunset the government’s ability to acquire records from businesses like hotels, car rental agencies, and supply companies, under Section 215, in a targeted fashion. These kinds of records are routinely obtained by prosecutors in criminal investigations, through the use of grand jury subpoenas. It makes no sense for the government to be able to collect these records to investigate bank fraud, insider trading and public corruption, but not to help keep the country safe from terrorists.
While we must reauthorize these authorities, however, it’s equally important that we reform them. But we don’t yet have a reform bill that I’m satisfied with.
The American people have made clear that they want the government to stop indiscriminately collecting their telephone metadata in bulk under Section 215. They also want
more transparency from the government and from the private sector about how Section 215 and other national security authorities are being used. They want real reform.
I want to be clear that I emphatically agree with these goals. They can be achieved responsibly, and doing so will restore an important measure of trust in our intelligence community.
I agree with these reforms because the civil liberties implications of the collection of this type of bulk telephone metadata are concerning. This is especially so, given the scope and nature of the metadata collected through this program.
Now, there haven’t been any cases of this metadata being intentionally abused for political or other ends. That’s good. I recognize that the overwhelming majority of those who work in the intelligence community are law-abiding American heroes to whom we owe a great debt for helping to keep us safe.
But other national security authorities have been abused. Unfortunately, to paraphrase James Madison, all men aren’t angels. I’ve been critical, for example, of the Department of Justice’s handling of the so-called LOVEINT cases uncovered by the NSA’s Inspector General.
Given human nature, then, the mere potential for abuse makes the status quo concerning the bulk collection of telephone metadata under Section 215 unsustainable, especially when measured against the real yet modest intelligence value the program has provided.
The USA FREEDOM Act would in some ways reauthorize and reform Section 215 along these lines. It would end the bulk collection of telephone metadata in six months, and transition the program to a system where the phone companies hold the data for targeted searching by the government.
But the bill’s serious flaws cause me to believe that we can do better. Let me discuss just a few.
First, while the system to which the bill would transition the program sounds promising, it does not exist at present, and may well not exist in six months. Intelligence community leaders don’t know for sure how long it will take to build. They don’t know for sure how fast it will be able to return search results to the government. They don’t know for sure whether the phone companies will voluntarily keep the metadata for later searching by the government.
On this score, then, this bill feels like a leap into the dark when we can least afford it. While we need certainty that the bulk collection of telephone metadata under Section 215 will end, we also need more certainty that the new system proposed will work and be effective.
Second, the bill contains reforms to the FISA Court that are unneeded and risky. I’m strongly in favor of reforming the court to make clear that it can appoint a traditional amicus, or a friend of the court, to help it get the law right. This is a well understood legal concept.
But this bill goes further – potentially dangerously so. Under certain circumstances, the bill directs the FISA Court to name a panel of outside experts who would, in the words of the New York Times, “challenge the government’s pleadings” before the court.
Especially when the bill already ends the kind of dragnet intelligence collection under Section 215 that affects so many innocent Americans, this is wholly unnecessary. And for this reason, the Administrative Office of the U.S. Courts sent a letter alerting Congress to its concerns that this outside advocate could “impede the court’s work” by delaying the process and chilling the government’s candor.
In addition, this proposed advocate is contrary to our legal traditions, in which judges routinely make similar decisions on an ex parte basis, hearing only from the government. Mobsters don’t get a public defender when the government seeks to wiretap their phones. Crooked bankers don’t get a public defender when the government seeks a search warrant for their offices. There is no need to give ISIS a public defender when the government seeks to spy on its terrorists to keep the country safe.
Third, the bill also contains language that amends the federal criminal code to implement a series of important and widely-supported treaties aimed at preventing nuclear terrorism and proliferation. However, the bill doesn’t authorize the death penalty for nuclear terrorists. Nor does it permit the government to request authorization from a judge to wiretap the telephones of these terrorists or allow those who provide them material support to be prosecuted.
These common-sense provisions were requested by both the Bush and Obama Administrations, but for unknown reasons they were omitted from the bill.
In fact, Senator Whitehouse and I have introduced separate legislation, the Nuclear Terrorism Conventions Implementation and Safety of Maritime Navigation Act of 2015, which would implement these treaties with these provisions included.
Recently, I’ve been heartened that there is a bipartisan group of members of the Judiciary and Intelligence Committees who share these and other concerns. We’ve been discussing an alternative reform bill that would also end the bulk collection of telephone metadata under Section 215. But it would also do a better job of ensuring that our national security is still protected.
So I support a short, temporary reauthorization with the hope that an alternative reform bill can be crafted that addresses the core reform goals of the American people and that appropriately balances national security with the privacy and civil liberties of all Americans. There’s work ahead, but it’s important that we get this reform right.
I yield the floor.
JUNE 2 UPDATE: This morning the Senate approved a cloture motion on the USA Freedom Act by 83 votes to 14 (roll call). Grassley was in the yes column, even though he had voted against proceeding with the bill two days earlier, as described above. Ernst stuck to her position, as one of 13 Republicans (and one Democrat) who voted no.
Amendments offered by Senators Rand Paul and Ron Wyden did not get a vote today, but Majority Leader McConnell put up three amendments during the floor debate. Julian Hattem reported for The Hill,
Critics said the three amendments would have significantly watered down the bill. The measures would have reduced the powers of the new expert court panel, given the NSA more time to end its phone records program and imposed new requirements for how phone companies store call data.
This afternoon, senators approved the USA Freedom Act by 67 votes to 32. I was surprised to see Grassley vote yes, since he had expressed such grave concerns with the legislation. Ernst voted no, making today the first time Iowa’s two Republican senators have voted opposite ways on final passage of a bill.
Statement released by Grassley on June 2:
Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, made the following statement after the Senate passed the USA FREEDOM Act. Grassley voted for several amendments to improve the bill that did not pass. He voted for the bill on final passage.
“I’ve pointed out in the past the concerns I have with this bill. Those concerns remain. I voted for several amendments to fix the amicus provision, provide the government notice if the telephone companies were not going to continue to hold the phone records for at least 18 months, and require the Director of National Intelligence to certify that the new program was operationally effective. Those amendments would have addressed several of my concerns. I remain hopeful that many of these deficiencies can be addressed in the future.
“In the end, I felt that the bill was better than no reform at all and it restored several important, noncontroversial national security tools.”
Statement released by Ernst on June 2:
“As a soldier and member of both the Homeland Security Committee as well as the Armed Services Committee, I cannot support legislation that hampers important security tools implemented as a part of our original counter-terrorism approach.”
WASHINGTON, D.C. – U.S. Senator Joni Ernst (R-IA) released the following statement after voting against passage of the USA Freedom Act:
“As a soldier and member of both the Homeland Security Committee as well as the Armed Services Committee, I cannot support legislation that hampers important security tools implemented as a part of our original counter-terrorism approach.
“During this important debate, I supported a short-term extension of the expiring PATRIOT Act provisions which are critical to the safety and security of our country.
“I have expressed my serious concerns over delegating responsibility solely to telephone companies. The USA Freedom Act fails to detail how long telephone companies are required to keep metadata records, and there are uncertainties about process delays in the transfer of information from telecom to the federal government. We can and must do better to protect the privacy and security of all Americans.
“America cannot afford the potential for systemic and long-term intelligence gaps. This approach undercuts protections previously put in place and opens the door for a false sense of security at such a critical time in the fight against terrorism.”
Final note on the GOP presidential candidates: Lindsey Graham missed all of today’s Senate votes in order to campaign in New Hampshire. Pathetic.
Paul voted against all the McConnell amendments and against final passage of the USA Freedom Act.
Rubio voted for all the McConnell amendments but against final passage. His views on the legislation are similar to Ernst’s.
Cruz voted against all the McConnell amendments but for final passage. Like many senators who supported the compromise, he did not want to send a watered-down bill back to the House, where it would likely be rejected.
President Barack Obama signed the USA Freedom Act within hours of Senate approval.
LATER UPDATE: I forgot to mention that Democratic presidential candidate Bernie Sanders voted against all the McConnell amendments, then voted against the bill on final passage. Like Paul, he believes the bill still allows too much surveillance that violates civil liberties.