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The US Senate's Patriot Act Fail

DEEPLINKS BLOG
May 28, 2015

The US Senate's Patriot Act Fail

The US Senate did something big last week. In a midnight session, the Senate clearly rejected a clean reauthorization of the NSA’s bulk phone records collection program, voting 45-54 against proceeding with S. 1357, a two-month reauthorization of Section 215 and two other expiring provisions of the Patriot Act.

Considering the fear-mongering and legislative quagmire NSA reformers have faced, that’s no small thing. We think it means that the voices of thousands of people who have contacted lawmakers are making a difference.

But the fight isn’t over. During the same session, the Senate also failed to come to an agreement to advance the USA Freedom Act (H.R. 2048), an NSA reform bill . The Senate’s inability to agree on a way forward is a good sign that Section 215 of the Patriot Act will expire on June 1—but at the behest of Senate Majority Leader and NSA defender Mitch McConnell, the Senate will meet again on May 31 for further votes.

It’s clear that Congress needs to get serious and—as we said Saturday after the failed votes—stop stalling and address the mass surveillance and secrecy abuses of our government.

The tl;dr on Saturday’s Votes

At 12:01 am Saturday, Sen. McConnell (who as Senate majority leader sets the voting calendar) moved to advance the USA Freedom Act and four short-term reauthorizations of Section 215 of the Patriot Act. Sen. McConnell has known for years that these three provisions of the Patriot Act would expire unless reauthorized; however, instead of scheduling debate on them in mid-May, he waited until after the Senate spent almost two weeks on "Trade Promotion Authority" (aka fast track). The chamber failed on each vote and decided to meet again on the afternoon of Sunday May 31.

What the Senate's Inability to Agree Means

The stalemate means the program—according to a leaked Department of Justice memo—is beginning to be shut down. If the Senate fails to pass anything on Sunday, it will be the first time Americans' calling records aren't being collected in bulk since 2001.

The shutdown appears real: the Department of Justice did not file a reauthorization with the secretive FISA Court to renew the program. While some concern exists that the intelligence community will use an exception in the Patriot Act to continue the collection, we believe the calling records program will be stopped in light of the administration's own words and the Second Circuit's ruling.

The Midnight Vote

The Senate's midnight session was incredible. Originally Sen. Rand Paul planned to object to a vote until 1 am, the time at which Sen. McConnell could overcome the objection and formally begin a vote on NSA bills. Sen. Paul dropped his objection early, allowing Sen. McConnell to convene the Senate at 12:01 am. Instead of debating the bills, he immediately moved for a "cloture vote" (a vote requiring 60 Senators to agree to move forward on a bill whenever any one Senator objects) to advance towards a final vote on the USA Freedom Act. If 60 Senators voted yes to "invoke cloture," then the Senate would move to debate and vote on the actual bill and any amendments allowed by the Majority Leader

Just like last year, the USA Freedom Act failed to get 60 votes. Senator McConnell then called up his preferred path forward, S. 1357: a two-month reauthorization of Section 215 and two other expiring provisions of the Patriot Act. The Senate refused to advance the bill.

Majority Leader McConnell's Mistake

In a last-ditch effort to maintain the NSA’s mass surveillance, a visibly flustered Sen. McConnell made a speaking motion to extend the sunset date of the expiring provisions to June 5. Since there was no formal bill, he needed the entire Senate to agree to move forward with such an extension. Unfortunately for Sen. McConnell, privacy stalwart Sen. Ron Wyden objected. Sen. McConnell then moved to extend the provisions to June 3. Sen. Martin Heinrich, another privacy stalwart, objected next. Finally, Sen. McConnell moved to extend the provisions to June 2. His fellow Senator from Kentucky, Sen. Rand Paul, objected to extending Patriot Act surveillance for even one more day.

And with that, Sen. McConnell's plan to reauthorize the program failed—at least temporarily. In a desperate last minute negotiation, he agreed with Senate Minority Leader Harry Reid to force the Senate to meet again on Sunday May 31.

What Will Happen Sunday?

It's unclear. The Obama Administration unsurprisingly left itself wiggle room to continue the calling records program. In the same DOJ memo noting the program's closure, the administration also said that if the House passed a Senate reauthorization on June 1—technically after the provisions expire—the White House would continue the provisions. While there are news reports of further compromise on the House's USA Freedom Act, lead cosponsor Rep. Jerry Nadler has ruled out any further weakening of the bill.

What we do know is that the Senate calendar says it may hold another vote on the USA Freedom Act in the afternoon. Sen. McConnell is vigorously campaigning to reauthorize Section 215 without any reform. Any vote scheduled in the afternoon of May 31—about 8 hours before the provisions formally expire—will surely be used to fear-monger for a short-term reauthorization. In response, the Senate must stand strong and vote down any short-term reauthorization.

Be sure to tune in to @EFFLive for live updates on Sunday. In the meantime, you can use the next few days to let Congress know that it must not pass a short term reauthorization.

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