Scrambling to prevent a shutdown of a program used to track terrorists, the Senate pulled an all-nighter but failed early Saturday to resolve a standoff over the National Security Agency system of collecting and storing U.S. telephone records.
Lawmakers had hoped to leave town for a weeklong Memorial Day recess, but were stuck in Washington to figure out a way keep the spy program running past its June 1 expiration date after Sen. Rand Paul (R-Ky.) forced the midnight votes.
Unable to reach an agreement, Senate Majority Leader Mitch McConnell (R-Ky.) called it quits early Saturday and told senators to return to work May 31, hours before the program shuts down.
“We’ll have one day to do it,” said McConnell, who declined to answer questions as he left the building. “So we better be ready next Sunday afternoon to prevent the country from being endangered by the total expiration of the program.”
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. On a vote of 57 to 42, it fell short of the 60 needed to advance.
A measure from McConnell to continue the program for two months as is, with no reforms, was also prevented from advancing, by a 45-54 vote. McConnell then tried to hold votes on four other stopgap measures that would allow the program to continue collecting telephone data for one week, a few days or even just 24 hours until lawmakers could return and launch a full debate. Paul objected to those measures, as did two Democrats, 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 earlier this week to delay proceedings.
“The Bill of Rights is worth losing sleep over,” Paul tweeted 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 Kentucky senator. But elsewhere in the Capitol, his maneuver drew grumbles from fellow senators in his own party who viewed it as a campaign stunt.
“There’s a new breed in the Senate,” said Sen. John McCain (R-Ariz.). “They march to a different drummer.”
But Paul, his voice scratchy after the long week, made no apologies, even though few senators back his effort to end the program.
“It’s not about making a point, it’s about trying to end bulk collection,” Paul said. “I think people don’t really question my sincerity.”
The debate over whether or not to continue the NSA program 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.
In a sign of the growing political consensus for changes, Senate Republican leaders had reversed course earlier Friday and signaled that they were willing to consider legislation to reform how the NSA searches U.S. telephone records once they return from the holiday recess.
But new legislation promised by Sen. Richard M. Burr (R-N.C.), chairman of the Senate Intelligence Committee, reflects the recognition among GOP leaders that the current NSA program cannot simply be extended, especially after a federal appeals court has ruled it illegal.
The provision in the law used to authorize the program is set to expire June 1, and the NSA now considers the legality of the government collection of Americans’ phone records uncertain. That puts calls to keep it running without changes, as McConnell has proposed, on shaky ground.
With Congress unable to resolve the dispute, intelligence officials warned that they would begin scaling back the collecting and archiving of domestic telephone records in anticipation of a shutdown.
Fearful of allowing a counter-terrorism program to close on their watch, some senators hoped an agreement could still be reached before next Sunday.
“We don’t want a dark period,” Sen. Dan Coats (R-Ind.), a member of the Intelligence Committee, told reporters earlier.
A stopgap measure would keep the program running and give time for senators to consider the new bill being proposed by Burr.
Burr said his bill would include many elements of the House-passed USA Freedom Act, which would end the NSA’s practice of storing U.S. telephone data. It would require the NSA to obtain a court order to search records held instead by phone companies.
But Burr’s bill has a key difference: Instead of allowing a six-month window to keep the old system running during the transition, as the House proposed, his measure would expand that to 24 months.
Intelligence officials have told Senate leaders that six months is enough time for the transition.
“We are aware of no technical or security reasons why this cannot be tested and brought on line within the 180-day period,” NSA Director Michael S. Rogers wrote in a letter Wednesday to McConnell and Minority Leader Harry Reid (D-Nev.).
Rogers told Senate leaders the tighter time frame was achievable, according to the letter.
Sen. Dianne Feinstein of California, the top Democrat on the Intelligence Committee, said she did not support Burr’s approach.
In addition to extending the transition period, Burr said his bill would permanently reauthorize other surveillance provisions set to expire, which are less disputed in Congress.
Those include “roving wiretaps,” which permit the FBI to eavesdrop on every phone used by a suspected terrorist without seeking separate court warrants for each one, as well as a “lone wolf” provision that helps the FBI track an individual suspected of planning a terrorist attack, even if he or she has no known link to a terrorist group.
The Republican leadership’s efforts were aimed at calming concerns among some senators who want to keep the NSA’s program in place until they are certain the new methods 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.”