NSA Spying Heads to Critical Senate Showdown

By Kaveh Waddell and Brendan Sasso

May 14, 2015

The House overwhelmingly approved legislation Wednesday to end the National Security Agency's mass-spying program, setting up a high-stakes showdown next week in the Senate.

Key provisions of the Patriot Act are set to expire June 1, and because of a scheduled recess, Congress has only until May 22 to reach a deal on the controversial post-9/11 surveillance law.

The House's bill, the USA Freedom Act, would extend the Patriot Act while also imposing restrictions on the NSA's powers. Democratic Sen. Patrick Leahy, Republican Sen. Mike Lee, and others are championing counterpart legislation in the Senate.

The White House officially threw its support behind the USA Freedom Act on Tuesday.

But Senate Majority Leader Mitch McConnell is pushing to renew the Patriot Act without any changes, saying the NSA's bulk collection of records on millions of U.S. phone calls is critical for protecting national security. Republican Sen. Bob Corker said Wednesday morning that he is "shocked" at how little data the NSA collects.

"We're not taking up the House bill," Senate Intelligence Committee Chairman Richard Burr, another defender of the NSA, told reporters Wednesday. "The program as designed is effective, and members are reluctant to change things that are effective just because of public opinion."

Burr said he views the USA Freedom Act as "one and the same" as allowing the Patriot Act provisions to expire entirely. "Because when you do away with bulk storage, you basically have an unworkable system in real-time," he said.

(See also: What the End of Bulk Metadata Collection Would Mean for Intelligence Collection)

McConnell will force a vote on his bill for a clean reauthorization of the Patriot Act next week, Burr said. But he didn't rule out the possibility that USA Freedom Act supporters would be able to offer their bill as an amendment.

Reform advocates hope that the lopsided 338-88 vote in the House will put pressure on the Senate to pass their bill. "The overwhelming vote in the House should send a strong signal to Senate Republican leaders that momentum is on the side of surveillance reform," Leahy said in a statement.

With a 60-vote threshold in the Senate necessary to take any action, it's possible that neither bill will muster enough support to pass. If both sides refuse to back down, the Patriot Act provisions will expire.

That's what privacy advocates such as the American Civil Liberties Union are rooting for, along with Sen. Rand Paul, who has said he plans to filibuster a renewal of the Patriot Act.

Even if the Senate passes McConnell's surveillance bill, it's not clear if the measure could make it through the House. Rep. Adam Schiff, the top Democrat on the House Intelligence Committee, called a clean Patriot Act bill a "nonstarter" in the House.

The NSA's defenders may try to pass a short-term extension, but even that would likely face resistance. Democratic Sen. Ron Wyden and Leahy have said they would oppose any clean extension of the Patriot Act.

Democratic Sen. Richard Blumenthal said he will not support an extension unless it's very short—"weeks," he said. "And only for the purpose of working for some compromise."

Blumenthal called the NSA program "stunningly unproductive" and said he is surprised that "senators would still believe that it is absolutely necessary to our national defense."

With less than a week before the Patriot Act provisions sunset, the Senate's path forward on changing the NSA's surveillance programs—or not—remains unclear.

"You know, Yogi Berra said, 'I never make predictions—especially about the future,' " Burr said.

By Kaveh Waddell and Brendan Sasso // Kaveh Waddell is an associate editor at The Atlantic. // Brendan Sasso is a technology correspondent for National Journal. He previously covered technology policy issues for The Hill and was a researcher and contributing writer for the 2012 edition of the Almanac of American Politics. He grew up in the San Francisco Bay Area and graduated from Claremont McKenna College.

May 14, 2015