NSA may need to begin winding down surveillance program this week
Washington Post by Mike DeBonis and Ellen Nakashima May 20 at 3:55 PM
The Justice Department has informed lawmakers that the National Security Agency will need to begin shutting down its bulk collection of Americans’ phone records after Friday if Congress fails to act by then to reauthorize or amend the program.
In a memo, the department said the NSA will need to act “to ensure that it does not engage in any unauthorized collection” or use of the data should the program not be extended by the congressionally mandated June 1 deadline.
The move comes as congressional Republicans remain sharply divided over the fate of the federal government’s bulk collection of private telephone records. And the memo, along with comments Wednesday by the FBI director , puts pressure on lawmakers to act.
“NSA will attempt to ensure that any shutdown of the program occurs as close in time as possible to the expiration of the authority, assuming the program has not been reauthorized in some form prior to the scheduled sunset,” according to the memo, which was obtained by The Washington Post. “. . . In the event of a lapse in authority and subsequent reauthorization, there will necessarily be some time needed to restart the program.”
The memo also states that the current court order authorizing the program requires the government to file for any renewal no later than Friday if it intends to continue the collection.
Sen. Rand Paul ‘filibusters’ against Patriot Act(0:51)
Sen. Rand Paul (R-Ky.) took to the floor Wednesday afternoon to filibuster the renewal of a section of the Patriot Act. Paul claims it gives government too much access to citizens’ private data. (C-SPAN)
“For these reasons, after May 22, 2015, it will become increasingly difficult for the government to avoid a lapse in the current NSA program of at least some duration,” it said.
[White House ‘strongly supports’ measure to end mass phone-data collection]
Senate Majority Leader Mitch McConnell (R-Ky.), who favors a long-term continuation of the existing phone-data collection program, said Tuesday that he plans to allow a vote on a House-passed bill aimed at altering the program.
That bill passed by a wide margin in the House, with nearly 200 Republican votes, but McConnell opposes it and suggested Tuesday that it will not gain the necessary 60 votes to proceed in the Senate. He instead raised the possibility of a short-term extension of the current authority under the Patriot Act’s Section 215, which is set to expire June 1.
“What I think is the most important thing is to make sure we still have a program, a program that works, and helps protect the American people from attacks,” McConnell said. “That’s the bottom line here. And we’re going to work toward addressing that this week, and we’ll see how it turns out.”
But House Republican leaders said this week they have no plans to bring a short-term extension to a vote before starting a week-long recess Thursday. And there is some opposition in the Senate to the prospect of any extension.
Sen. Rand Paul (R-Ky.), a presidential candidate, took to the Senate floor Wednesday afternoon to begin what he told his political supporters would be a filibuster of attempts to extend current law.
“I, for one, say there needs to be a thorough debate, a thorough and complete debate, over whether we need to allow our government to collect all of our phone records all of the time,” Paul said.
[Rand Paul vows to do everything possible to block Patriot Act renewal]
Meanwhile, FBI Director James B. Comey is warning that the June 1 “sunset” affects not only the NSA’s bulk collection but also three legal tools that he said are “critical” to the bureau’s investigations of terrorists and spies. They are “noncontroversial,” he said, and are getting drowned out by the focus on the NSA program.
Section 215 not only authorizes the contested bulk phone records collection but also enables the FBI to obtain a court order for data on individual suspects, Comey said.
“If we lose that authority . . . that is a big problem,” he said Wednesday at Georgetown University Law Center. “We’ll find ourselves in circumstances where we can’t” obtain records with a grand jury subpoena or a national security letter in counterterrorism or counterespionage probes, he said.
Two other provisions that are set to lapse enable surveillance of “lone wolf” suspects who are not linked to any foreign terrorist group or foreign government and allow “roving wiretaps” on targets who frequently switch communications devices.
“If I lose those tools, it is a huge problem,” he said Tuesday at an American Law Institute conference.
Democrats and at least one GOP senator urged McConnell and like-minded Republicans to drop their opposition to the House bill, calling it a carefully crafted compromise that has won endorsements across the political and ideological spectrum.
Sen. Charles E. Schumer (D-N.Y.), the third-ranking Democratic leader, said the bill — known as the USA Freedom Act — represented a “lifeboat” for Republicans who fear a sunset of the current law. “You’re alone on this island,” he said, addressing McConnell. “Take the boat. Get off the island.”
On the Senate floor Tuesday afternoon, Sen. Mike Lee (R-Utah) noted that the bill had the support of most House Republicans, Attorney General Loretta E. Lynch, Director of National Intelligence James R. Clapper Jr. and an ideologically diverse coalition of outside groups including the NAACP and the National Rifle Association.
“This is a supermajority,” Lee said, “a super-duper-majority.”
But key Republican senators continue to have concerns about the revisions set out in the House bill, which would end the NSA’s mass collection of phone-call metadata. That information, which includes dialed numbers, call times and durations of calls, would remain in the hands of phone companies, which could be required by a court order to search for records linked to terrorism suspects and send the data to the NSA.
Sen. Richard Burr (R-N.C.), chairman of the Senate Intelligence Committee, said Monday he was seeking further assurances that the system set out in the House bill would be workable for intelligence agencies.
“I’m trying to make sure we’ve got a viable way forward that protects the capabilities that this program provides but allows Mike Lee and others the certainty that it’s going to transition out of a bulk storage program at some point in the future,” he said.
Such a compromise, said Senate Majority Whip John Cornyn (R-Tex.), might involve “a longer period of transition where we can actually verify it works and not just do it based on a hope and prayer.”
Lee, a lead Senate sponsor of the USA Freedom Act, said he was open to the idea of a compromise to extend the transition period. “I don’t think there’s anything particularly sacrosanct about the six months,” he said. “I don’t have a problem with someone suggesting a longer term if they can demonstrate that’s necessary.’’
Another Republican leader, Sen. John Thune (R-S.D.), said an expiration of the current authority would be a “bad outcome” and said the Senate is most likely to endorse a short-term extension of current authority, for no more than a couple of months.
“Clearly, the House is in a very different place right now than where I think the majority of Senate Republicans are,” he said. “That, I think, can be bridged, but it’s going to take time to do that.”
After taking its last votes of the week on Thursday afternoon, the House is not set to meet again until June 1 — hours after the current authority would expire. Burr, for one, suggested the Senate could pass legislation late this week, leaving the House to take it up when it returns.
But the Justice Department has made clear that the NSA needs to know Congress’s intentions this week.
National security officials are preparing for a possible sunset of the law, which Congress passed after the Sept. 11, 2001, terrorist attacks but whose use to justify the bulk data collection was not publicly known until the disclosures by former NSA contractor Edward Snowden in 2013.
Without the legal tools, the FBI “will press on,” Comey has said. Nonetheless, intelligence officials say the loss of the data-gathering power would be a blow. “You’re taking tools off the table while [the Islamic State] is taking over Ramadi,” a U.S. official said. “They’ve got to take ownership of that.”
A lapse of even a day or two would be highly disruptive to ongoing investigations, officials said. If a court order expired during a gap in authority, for instance, it could not be renewed, and preemptively renewing those orders can be time-consuming.
“It would screw things up,” said the official, who spoke on the condition of anonymity because he was not authorized to comment openly to reporters.
Some privacy and transparency groups say that losing Section 215 would not cripple investigations, because the government would still have its predecessor — a pre-Patriot Act provision that would allow it to collect a narrower class of business records if they pertain to foreign powers or agents of foreign powers. And despite Comey’s remarks, these groups say they believe the government’s other data-gathering tools, such as grand jury subpoenas and national security letters, are sufficient.
“It’s time for the national security establishment to argue why they need enhanced powers . . . after 14 years of the Patriot Act being in place,” said David Segal, executive director of Demand Progress, a grass-roots civil liberties group.
Sen. Martin Heinrich (D-N.M.), who has vowed to filibuster any extension of the current law, said he doubts that McConnell has the 60 votes needed to advance a short-term fix, citing widespread opposition among Democrats. “It takes our eye off the ball here in terms of getting a long-term solution,” he said. “Why would we extend even for a short period of time a law that has been ruled illegal by the courts?”
A federal appeals court ruled this month that Section 215 of the Patriot Act did not provide sufficient authority for the bulk surveillance program, but it stayed its ruling pending congressional action on the reauthorization of the law.
Even if the Senate was to pass a short-term extension, there is significant doubt whether the extension could pass the House. Most of those opposing passage of the USA Freedom Act last week did so out of civil-liberties concerns rather than national security fears.
Rep. Adam B. Schiff (D-Calif.), the ranking minority-party member of the House Intelligence Committee, said at a Christian Science Monitor breakfast with reporters Tuesday that “there are lots of people in the House who are prepared just to have the sections expire.”
If the Senate moves to “kick the can down the road,” he added, “I don’t think that’s going to fly in the House.”
Although Cornyn said he was unsure whether the requisite 60 senators would support a short-term extension, he suggested the impending deadline — and the approaching Senate recess — would spur a compromise.
“What usually happens when you get down to a deadline like that is people then reevaluate the circumstances and then do the responsible thing,” he said. “And that’s what we should do . . . which is, don’t let this important program expire.”