Senate Intelligence Chairman Richard Burr is working on a "backup" plan to extend the Patriot Act's surveillance authorities before they expire at the end of the month, even as House leaders threaten to jam the Senate with their spying-reform bill.
House Majority Leader Kevin McCarthy on Monday pushed the Senate to pass a House bill reauthorizing parts of the National Security Agency's bulk phone-records program and said his chamber will not remain in session to wait for the Senate despite the end-of-May deadline.
But even as McCarthy made his threat, senators supportive of the NSA's bulk collection of U.S. call data indicated that they aren't concerned about the House using the calendar against them. And the time crunch won't prevent them from seeking other alternatives.
"It's not like they're going to jam us on Thursday and leave town and make us believe we can't send them something else," Burr, one of the chief defenders of the NSA-spying status quo, told reporters. "We can."
Burr noted that the House is due back in session June 1—the same day the surveillance authorities are due to sunset. If the Senate wants to take its time dealing with surveillance, Burr said, the House can consider its bill when it returns.
The House is scheduled to recess on Thursday until June, and McCarthy said that instead of a short-term extension, the Senate should pass the USA Freedom Act, which overwhelmingly passed the House last week. He said it represents a consensus view between those concerned with civil liberties and those concerned with security.
"If we have a bill with 338 votes, why would we need to wait around? So it's no intention of waiting around," he said. "I'm hopeful that they'll be able to "¦ move this bill."
Burr and Senate Majority Leader Mitch McConnell, in tandem with a few Republican defense hawks in the Senate, have refused to budge from their position that the House-passed reform bill could hamper the intelligence community's ability to thwart terrorist plots. Their firewall comes despite support for the measure from the White House, Director of National Intelligence James Clapper, and a recent federal appeals court ruling that deemed the phone dragnet illegal.
Moreover, Burr challenged reformers' argument that the Freedom Act is must-pass legislation required to stave off a complete expiration of the Patriot Act.
"You've got to understand, I look at [USA Freedom] and I think that's the same as expiration," Burr said. "So, if it expires or you pass [USA Freedom], you end up with the same thing—you end up with a program that's not working."
Yet McCarthy dismissed McConnell's and Burr's objections to the bill. He said senators were similarly apathetic about the recent "doc fix" deal, which fixed a Medicare formula used to pay doctors. In spite of their objections, the bill, he noted, passed overwhelmingly once it was taken up.
While he did threaten to jam the Senate, McCarthy did not rule out a short-term extension of the program if the Senate needs more time to act.
But even as Burr attempted to downplay concerns about the Patriot Act provisions lapsing, he did suggest a "backup" plan is in the works, though he wouldn't say whether it was a bill or an amendment. Burr indicated his plan would seek to lengthen the transition from the bulk-records regime to an as-needed system, wherein the NSA could ask for select metadata from telephone companies after getting judicial approval. He also attempted to quell rumors that his plan would include a data-retention mandate for telecoms.
"I'm not trying to apply mandatory retention to telecoms," he said. "I think most telecoms would tell you they're out of the business, if that's the case, or [USA Freedom Act sponsor Patrick] Leahy would have mandatory in his bill."
Burr's plan would not make anything mandatory, he said, while adding that "it may have some language that requires them to notify us if their retention plans are going to change."
Sen. Dianne Feinstein, the top Democrat on the intelligence committee, referred to a separate "backup" bill that she is working on independently from Burr in case the Senate can't find enough support for the Freedom Act, which she herself endorses. Her office confirmed that Feinstein is drafting her own measure.
"Right now, the effort is to get 60 votes on the Leahy bill," Feinstein said. "Now, do I have a backup if that doesn't happen? Yes. Whether it would work or not, I don't know."
Burr's position—that the USA Freedom Act is just as bad as an expiration—is challenged by senior members of the intelligence community who for months have warned that blowing past the Patriot Act deadline would represent a far greater threat to national security than congressional reform efforts.
Section 215 of the Patriot Act, which the NSA used to justify its bulk phone-records program that was exposed by Edward Snowden two years ago, possesses value "quite independent of the NSA metadata program," said Stewart Baker, former general counsel of the NSA. "So in my view, losing all 215 authority would hurt our security more than losing the metadata program."
The standoff between the Senate and House is compounded by filibuster threats from Sens. Rand Paul and Ron Wyden. Paul, a GOP presidential candidate, has vowed to block any attempt to reauthorize the expiring Patriot Act sections, while saying the Freedom Act doesn't go far enough to usher in reform. Wyden, an Oregon Democrat, is expected to support the Freedom Act but has promised to stand in the way of McConnell's attempts to push through a clean reauthorization, which could be used to leverage support for weaker reform.
Paul took to Twitter on Monday night to again suggest that his filibuster threat is real.
"They are going to throw everything at me to continue their ability to spy on Americans without a warrant," Paul tweeted, noting that "they're determined to use the May 31st expiration date as an excuse to ram through legislation continuing illegal domestic spying."
CLARIFICATION: This article has been updated to indicate that Sen. Dianne Feinstein is working on her own "backup" surveillance legislation rather than collaborating with Sen. Richard Burr on a bill.
Alex Rogers and Kaveh Waddell contributed to this article
This article is from the archive of our partner National Journal.
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Daniel Newhauser is a staff correspondent for National Journal, where he primarily covers the House of Representatives. He was formerly a House leadership reporter for Roll Call, where he started as an intern in 2010 and quickly earned a slot as a beat reporter.
A native of San Antonio, Texas, Newhauser traveled further West to study journalism at Arizona State University's Walter Cronkite School of Journalism and Mass Communication and write for newspapers including the East Valley Tribune and the Green Valley News & Sun.