Hours after the Senate balked at reauthorizing the bulk collection of U.S. telephone records, the National Security Agency began shutting down a controversial program Saturday that senior intelligence and law enforcement officials say is vital to track terrorists in the United States.
The Senate had debated into early predawn hours Saturday but failed to reach a deal to reform the program or extend its life beyond May 31, when the law used to authorize it is set to expire. Lawmakers then left on a weeklong recess, vowing to return at the end of it to try again in a rare Sunday session.
Administration officials said later that they had to start the lengthy procedure of winding down the counter-terrorism program in anticipation of Congress failing to act.
“That process has begun,” an administration official said Saturday.
Intelligence officials warned of a precipitous gap in data collected if Congress does not come up with a plan before May 31 to either expand the NSA's authority — which is unlikely — or replace the program in an orderly way over several months.
The start of the wind-down process marks the most significant step the Obama administration has taken to limit the data collection since former NSA contractor Edward Snowden leaked documents in 2013 showing the government was siphoning and holding millions of so-called toll records of domestic phone calls.
The data include the number dialed, duration, date and time for most telephone calls made by Americans. The information is then searched for connections to the phone numbers of known or suspected terrorists. About 300 such searches were made in 2014.
Opponents of the program, including presidential candidate Sen. Rand Paul (R-Ky.) and Sen. Ron Wyden (D-Ore.), are concerned that the massive database could invite abuse by future administrations that want to find out how citizens are connected to one another, stifle dissent or crack down on political enemies.
“The Bill of Rights is worth losing sleep over,” Paul wrote on Twitter on Friday night after he sent the Senate into overdrive by running the clock on procedural steps. “Continuing to filibuster against NSA bulk surveillance.”
Paul won praise from his supporters for his unrelenting stand against the surveillance program. Two Republican lawmakers from the House came to the late-night Senate session to back the senator. But his maneuver drew grumbles from fellow senators in his party who viewed it as a campaign stunt.
The program, which puts data from phone companies into U.S. databases, is complex and requires several days to shut down, officials said. Intelligence officials said they had to start taking steps now in order to stay within the bounds of the law, particularly after a federal circuit court ruling this month found the NSA program to be illegal. The decision invalidated the legal analysis of the Patriot Act that NSA lawyers used for years to justify large-scale collection and storage of call records.
The standoff in Congress also puts in jeopardy some lesser-known parts in the Patriot Act, which was passed after the Sept. 11, 2001, terrorist attacks.
One of them allows the FBI to collect business records, such as credit card and banking data, for use in terrorism investigations. Another authorizes “roving wiretaps,” which permit the FBI to eavesdrop on every phone used by a terrorism suspect without seeking separate court warrants for each one.
Another helps the FBI track a “lone wolf,” an individual suspected of planning a terrorist attack, even if he or she has no known link to a terrorist group. If the provisions lapse, the FBI could continue using the roving wiretap and lone wolf authorities in existing cases only.
“We better be ready next Sunday afternoon to prevent the country from being endangered by the total expiration of the program,” Senate Majority Leader Mitch McConnell (R-Ky.) said as he left the Capitol.
Senators had rejected two bills that would have continued the program, including one overwhelmingly approved by the House and backed by the White House that would put limits on the government’s ability to acquire phone data.
The House bill gave the NSA six months to shift from collecting and holding the raw call data on government servers to a program that requested the records from telephone companies on a case-by-case basis. It fell three votes short in the Senate. Many view it as the most viable compromise.
Then proposals from McConnell to continue the program as is, with no changes, for as little as one extra day, also fell short.
Paul objected to those measures, as did two Democrats, a further sign of bipartisan opposition to extending the program without changes. Paul, who has made shutting down the NSA program a focus of his presidential bid, engaged in a 10½-hour talk-a-thon this week to delay proceedings.
“It’s not about making a point, it’s about trying to end bulk collection,” Paul said. The debate has been difficult for Congress, and especially McConnell, the Republican leader who backs Paul for president but disagrees with his fellow home-state senator on this issue.
Senate Republican leaders had reversed course earlier Friday and signaled they would consider legislation to revamp how the NSA searches U.S. telephone records, but after lawmakers return from the holiday recess.
Legislation promised by Sen. Richard M. Burr (R-N.C.), chairman of the Senate Intelligence Committee, is expected to include many elements of the House-passed USA Freedom Act.
Fearful of allowing a counter-terrorism program to close on their watch, some senators suggested an agreement could still be reached before May 31. “We don’t want a dark period,” Sen. Dan Coats (R-Ind.), a member of the Intelligence Committee, said before lawmakers adjourned.
Others expressed hope that if record collection were interrupted, the impact on the NSA would not be dire.
“What would happen during that time period, they just wouldn't be scraping data, but they still would be carrying out other parts of the program,” said Sen. Bob Corker (R-Tenn.), chairman of the Senate Foreign Relations Committee.
But more hawkish lawmakers oppose elements of the compromise approach. They want to keep the NSA’s program in place as is until they are certain the alternative methods being pushed by privacy advocates will work.
“The way you determine it doesn’t work is when the bomb goes off, and all of a sudden people say, ‘Hey, it didn’t work,’” Coats said. “That’s why holding it at current level is, we think, necessary until it’s proven that, yes, we can do this.”
Administration officials are urging Congress to act quickly and comprehensively. A stopgap measure to extend the program past May 31 would not satisfy the court order, they say, and would not stop the dismantling of the phone record collection effort.
Christi Parsons in the Washington bureau contributed to this report.