WASHINGTON — The Senate passed a significant remake of U.S. surveillance powers Tuesday, after an internal split among Republicans delayed consideration of the bill and caused the legal authority for key counterterrorism programs to temporarily expire.
The USA Freedom Act, a bill that would end the National Security Agency’s practice of collecting troves of call data from telephone companies, passed on a 67 to 32 vote. It would instead mandate a six-month transition to a system in which the data would remain in private hands but could be searched on a case-by-case basis under a court order.
Maine’s senators split on the issue. Republican Susan Collins voted against the act and independent Angus King voted in favor.
President Barack Obama has said he will sign the bill, which was passed by a wide margin in the House last month but became caught up in a sharp intraparty divide between Senate Republican leaders who sought to preserve the status quo and a small cadre of GOP senators who joined with Democrats in supporting changes to surveillance programs.
Notably, in the run-up to the expiration of Patriot Act legal authority early Monday, Sen. Rand Paul, R-Kentucky, objected to efforts to quickly pass either the House bill or short-term extensions of current law, frustrating both the White House and his fellow Senate Republicans.
“This is the Senate, and members are entitled to different views, and members have tools to assert those views. It’s the nature of the body where we work,” Majority Leader Mitch McConnell, R-Kentucky, said Tuesday morning. “But what’s happened has happened, and we are where we are. Now is the time to put all that in the past and work together to diligently make some discreet and sensible improvements to the House bill.”
Those “improvements,” however, threatened to further delay passage of the legislation. Any change would have sent the bill back to the House, where its fate was uncertain.
Leaders of the House Judiciary Committee — which crafted the USA Freedom Act on a bipartisan basis with intelligence officials, civil libertarians and telecommunications companies — said in a statement before Tuesday’s votes that the House was “not likely to accept the changes proposed,” which would “only serve to weaken the House-passed bill and postpone timely enactment of legislation that responsibly protects national security while enhancing civil liberty protections.”
McConnell downplayed the House threats Tuesday, saying the Senate reserved the right to act as it saw fit, regardless of the pending lapse in surveillance authority.
“You’d think it was the Ten Commandments,” he said of House leaders’ insistence that the bill pass without changes.
Sen. Bob Corker, R-Tennessee, a close McConnell ally, said he was concerned about the lapse but more concerned about a possible weakening of national security capabilities under the House-passed bill. “Look, if we’re talking about a day or two, I think we ought to do what we can to try to make it better,” he said.
But enough Republican senators joined with Democrats to spurn McConnell’s amendments, capping a series of strategic missteps on the majority leader’s part. Those “miscalculations,” as Minority Leader Harry M. Reid, D-Nevada, called them, had Democrats blaming McConnell for the temporary lapse in surveillance authority.
McConnell, said Sen. Charles E. Schumer, D-New York, “bungled this issue from start to finish,” adding that his pursuit of amendments likely to be rejected in the House was “risking our security by extending this drama so he can save face.”
Just before the final vote around 4 p.m. Tuesday, McConnell took to the floor to defend his moves to preserve the existing surveillance programs and otherwise lambaste Obama for his foreign policy — calling the end of the phone-data program the latest in a series of missteps that includes his decisions to withdraw troops from Iraq and Afghanistan and to seek the closure of the Guantanamo Bay prison camp.
“The pattern is clear,” McConnell said. “The president has been a reluctant commander-in-chief.”
McConnell’s amendments would have tweaked the USA Freedom Act to give further assurances that intelligence officials will be able to effectively search private phone records.
One amendment would have extended the transition period away from bulk collection to one year in order, in McConnell’s words, to “ensure that there is adequate time . . . to build and test a system that doesn’t yet exist.” Another would have required the new system to be certified as viable by the director of national intelligence, and a third would require telecom companies to notify the government if they change their data-retention policies.
None of the amendments went as far as McConnell and most Republicans wanted to preserve the status quo, but Sen. Richard Burr, R-North Carolina, chairman of the Senate Intelligence Committee, suggested they would have improved national security while not watering down the bill so much that it would be rejected by the House.
Paul sought amendments of his own that would take the bill in the opposite direction, further restricting surveillance powers in a bid to preserve civil liberties. But McConnell employed a procedural maneuver to prevent amendments other than his own.
Before voting against the USA Freedom Act, Sen. Collins, a member of the Senate Intelligence Committee, pointed out the critical importance and effectiveness of the NSA’s phone records program, as well as the long-standing lack of abuse of its authority, stating that “it is a false choice that we have to choose between our civil liberties and the protection of the United States.”
“I am truly perplexed that anyone would argue that telephone data is better protected in the hands of 1,400 telecom companies and 160 wireless carriers than in a secure NSA database that only 34 carefully vetted and trained federal employees are allowed to query under the supervision of a federal judge,” Collins said in her remarks from the floor. “It’s going to be less secure because instead of 34 people having access to just the phone numbers and call duration data, we’re going to have potentially thousands of people who are going to be asked to query their database. The system is going to be less effective because there is absolutely no guarantee that this data will be retained by the telecom companies and the wireless carriers.”
Sen. King, a member of the Senate Intelligence Committee, said, “Although I would have preferred that the Senate strengthen the bill even further by adopting provisions to give our government greater confidence that the new program will be fully effective, allowing this program to lapse for longer or expire altogether would be irresponsible. I believe it’s vital that we transition this program from the government to the private sector and renew these authorities so that our law enforcement and intelligence officials have the critical tools they need to fight terrorism.”
The bill as passed will also reauthorize other, less controversial counterterrorism tools, such as “roving wiretaps” of criminal suspects who frequently switch phones to evade authorities.
Two other Patriot Act provisions that lapsed Monday are Section 215, which not only justified NSA’s bulk collection but also is used in less controversial fashion to obtain records on individual terrorist suspects, and an authority that permits surveillance on a “lone wolf” suspect who cannot be linked to a specific terrorist group. The latter power has never been used.
During the lapse, the intelligence community has not gone completely without tools. It has other investigative powers, such as national security letters and traditional wiretaps, that it can use. And, to be sure, there are investigations launched before Sunday in which the expired tools were used, and the surveillance authorized by those tools may continue under a grandfather clause in the Patriot Act.
A national security official confirmed that “the existing orders are still good” under that clause. But, he said, “it’s not a good long-term solution. Or even a mid-term solution.”
If the FBI turns up a new terrorist suspect this week, it cannot use any of the expired tools to investigate that person, said the official, who was not authorized to speak on the record.
Paul Kane contributed to this report.