This article is from the archive of our partner National Journal

Even the federal courts won't stand in Mitch McConnell's way as he barrels ahead to renew the expiring surveillance provisions of the Patriot Act.

That much was clear Thursday as the Senate majority leader and a flock of defense hawks vigorously argued on the Senate floor in support of the National Security Agency's vast spying powers just hours after a court ruled its phone dragnet illegal.

Those Senate floor fireworks were planned before the U.S. Court of Appeals for the Second Circuit handed down its ruling earlier in the morning, according to congressional staffers, exposing just how little influence the ruling had on the minds of Republicans who are committed to preserving the program.

 

To McConnell and his cohort, the ruling will not change their strategy: to renew the Patriot Act and oppose virtually any reform to the government's sweeping surveillance program. And even a short-term reauthorization to the law's expiring surveillance authorities may no longer be on the table.

Republican Sen. Pat Roberts of Kansas, who once oversaw the Intelligence Committee, said privacy concerns were overstated.

"I think everybody is a privacy hawk, but it is a balance between our national defense. You don't have privacy if you're dead," Roberts said.

Many Senate security hawks merely discounted Thursday's ruling as a fluke, a one-off in a long line of rulings that weighed in their favor. Moreover, they rejected any suggestion that Congress did not intend to allow bulk collection of U.S. phone records by the NSA when it passed the Patriot Act in 2001 and amended it in subsequent years.

"It strikes me as an outlier," Senate Majority Whip John Cornyn said of the court decision.

Senate Intelligence Committee Chairman Richard Burr, a North Carolina Republican who is cosponsoring McConnell's effort to pass a "clean" reauthorization of the Patriot Act's surveillance authorities due to expire on June 1, was also undeterred. He argued that the phone snooping might not have passed the test of a three-judge court panel, but that it still met the standards of two politically divergent administrations and the NSA legal team.

"We all agreed with what we were trying to do, but somehow we wrote the law that didn't provide the statutory language," Burr told National Journal. "I think that's a joke."

During a policy luncheon Thursday, Republicans engaged in a debate about the best way forward, considering the new court ruling. Burr said many of his colleagues were still in an "educational mode" about how the program works and how to move forward.

But McConnell and Burr were already facing pushback in the Republican conference from members who want to see more sweeping reforms, and they saw the court decision as further opportunity to advance their own cause.

"There was a reference made in the concurring opinion that referred to the fact that my legislation would be one way Congress could respond to what they addressed in the opinion," said Sen. Mike Lee, a Utah Republican who is cosponsoring the USA Freedom Act, which would effectively end the bulk government collection of phone records and instead allow the government to ask telecom companies for them on an as-needed basis with judicial approval.

Burr's position—that Congress was aware of the bulk-collection program and intended for its creation under Section 215 of the Patriot Act—does not align with several lawmakers who contend precisely the opposite. Several Republicans and Democrats expressed surprise and outrage when the program was exposed publicly by Edward Snowden two years ago, including Rep. Jim Sensenbrenner, a Wisconsin Republican and original architect of the Patriot Act.

"Today's court decision reaffirms what I've been saying since the Snowden leaks came to light. Congress never intended Section 215 to allow bulk collection," Sensenbrenner said in a statement Tuesday. "This program is illegal and based on a blatant misinterpretation of the law."

Burr, however, suggested Sensenbrenner was mistaken. "That may have been Jim's interpretation of it; that certainly wasn't mine," he said.

Other hawkish Republicans were not afraid to pile on: "People who wrote the bill had plenty of time to describe their intentions of the bill on the floor of the Senate or the House," Sen. John McCain said. "If they didn't, they were in dereliction of their duties. It should be very clear, the intent, in the congressional record."

McCain added: "What the court did today is, in my view, in contravention of that legislation."

Both Burr and McCain said they expected the Supreme Court to eventually settle the legality and constitutionality of the phone-tracing program. When asked directly whether a clean reauthorization could still work, given the court's ruling, Burr did not equivocate: "The statutory language today allows the NSA to do exactly what they're doing."

Burr was also quick to dismiss any threat from the lower chamber, which has indicated it would not take up a clean renewal of the Patriot Act, and he put cold water on the idea of passing a stopgap extension to the Patriot Act's expiring provisions.

"Do you, as a reporter, believe everything that you hear from the House of Representatives? I don't think so," Burr said. "You can believe this: It's either pass a 5-and-a-half-year reauthorization or expire. Their option ... reverts back to a pre-9/11 strategy."

That all-or-nothing sentiment appears to be growing among prominent lawmakers on both sides of the debate, as those supporting and against reform appear unwilling to back down. Sen. Patrick Leahy, the top Democrat on the Judiciary Committee and a key backer of reform legislation, vowed not to vote for a clean reauthorization.

"[McConnell] will take whatever position he wants, but if this was put to a vote of the whole Congress, up or down, the House bill, which is the same as mine, would pass," Leahy said.

"Let's see what the House does next week," he added. "If they have a solid vote, we are going to have to vote on something like that because time is running out. Otherwise there'll be no program at all."

McConnell and his gaggle of Senate defense hawks, which includes presidential candidate Marco Rubio, are also facing resistance from some fellow Republicans, including other presidential hopefuls—Sen. Rand Paul, who has repeatedly vowed not to allow any extension of the Patriot Act to go through, and Sen. Ted Cruz, who favors the Freedom Act.

Many other Republicans said Thursday they were also hesitant to support a straight, five-year renewal of the bulk collection, especially in light of the ruling.

"We have kept our options open on how to bring in reforms, but I am very concerned about reauthorizations without any accountability or reforms being made," said Sen. Cory Gardner, a freshman Republican from Colorado.

Freshman Sen. Shelley Moore Capito of West Virginia said she has concerns about ending the bulk data collection completely at a time when the terrorism threat remains high, but she said the court ruling couldn't be dismissed as a chance for the Congress to reconsider the program.

"If the courts are saying it is illegal, I think that is a big question and we have to see how we will address it," Capito said.

McConnell and Burr's push also contrasts sharply with what the White House hopes to do before the deadline. President Obama has called for a transition resembling the Freedom Act's reforms. On Thursday, the administration said it was reviewing the court decision but indicated it still had no plans to unilaterally end the program, a move that many privacy advocates have clamored for over the past two years.

"The President has been clear that he believes we should end the Section 215 bulk telephony metadata program as it currently exists by creating an alternative mechanism to preserve the program's essential capabilities without the government holding the bulk data," White House spokesman Ned Price said in a statement.

But despite the growing chorus of the White House, Democrats, two Republican senators running for president, an expected strong majority of the House of Representatives, and now a federal court calling for surveillance reform, McConnell and Burr shall not be moved.

"The court ruled that the NSA didn't have the statutory authority to do bulk collection," Burr said. "In essence, what they said was, every member of Congress, the White House, their legal team, the Justice Department, the lawyers at the NSA, didn't write a program that was intended to give them [this authority]. "¦ I find that incredible.

"Under two administrations, the Justice Department got this wrong and the NSA legal team got this wrong?" he added. "I don't think so."

This article is from the archive of our partner National Journal.

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