The NSA's Phone-Spying Program Has Been Put on Hold

Provisions of the Patriot Act expire after Rand Paul takes a stand in the Senate, but the halt may only last for a few days.

Dado Ruvic / Reuters

If you’re making a phone call today, there’s a chance the NSA might not know about it.

The spy agency was forced to halt its collection of bulk telephone metadata early Monday after the Senate failed to extend three key provisions of the 2001 Patriot Act that expired at midnight. The lapse was a victory for Senator Rand Paul and activists who have campaigned against post-9/11 government surveillance programs—but it will likely only be a temporary one. While the Senate was stymied by Paul’s procedural hurdles on Sunday, it is likely to vote by mid-week on House-passed legislation that would reform the NSA’s spying powers while extending the Patriot Act for several years.

Over the past 10 days, Paul, the first-term Kentucky senator and Republican presidential candidate, succeeded in preventing Majority Leader Mitch McConnell from extending authority for the surveillance program even for a few weeks while lawmakers worked out a compromise. But the expiration on Monday was as much a result of McConnell’s own missteps in running the Senate floor as it was of Paul’s insistence on using his power to hold up legislation.

Essentially, McConnell overreached. A hawk on national-security matters, McConnell believed the House measure—known as the USA Freedom Act—weakened the NSA’s authority and pushed to extend the Patriot Act without revisions. So before Memorial Day, McConnell tried to force a compromise by engineering the defeat of the Freedom Act. He succeeded, but Paul would not grant his consent for any extension of the provisions. Senators being senators, they decided to take off for their scheduled week-long recess without passing anything. McConnell called lawmakers back into session Sunday night, hoping the impending deadline would increase pressure on Paul, and secure an extension of the Patriot Act.

But the Tea Party star would not relent, even in the face of criticism from his own Republican colleagues that he was using the Senate floor—and jeopardizing national security—to give his presidential campaign a boost. “I think he obviously has a higher priority for his fundraising and political ambitions than for the security of the nation,” Senator John McCain told reporters after tangling with Paul over procedure on the floor. The former GOP nominee reiterated that he believed Paul would be “the worst” candidate Republicans could put forward in 2016. In his own floor speech, Paul asked if lawmakers were going to “so blithely give up our freedom.”

“I’m not going to take it anymore,” he said. “I don’t think the American people are going to take it anymore.” Paul even suggested his Senate opponents “secretly” hoped for a terrorist attack that they could blame on him.

The politics of the whole squabble were even more awkward for McConnell, who has endorsed—formally if not enthusiastically—his Kentucky colleague’s bid for the presidency. Whether he will rescind that support is an open question at the moment.

Backed into a corner, McConnell will now try to pass amendments to the Freedom Act that would give the NSA more time to transition from collecting telephone metadata itself to a system in which the phone companies would do the collecting and storing of the data and the government would need a court order to access it. The House would have to approve any changes to the legislation. If that doesn’t work, the Senate will probably just pass that bill as it stands, which would be a win for Speaker John Boehner and the Obama administration, who both support the Freedom Act.

The NSA shut off its bulk collection program on Sunday evening, a few hours before the deadline. The lapse also means that the FBI can’t seek new wiretaps on suspected terrorists who switch cell phones, or on so-called “lone wolves” (although that provision has, reportedly, never actually been used). And it can’t seek a court order to obtain certain business records for anti-terrorism investigations. Those programs are likely to be back in place within a couple of days. But if those next few days pass calmly, the temporary halt may energize Paul’s supporters, who argue that the government’s surveillance programs are an unnecessary intrusion and that their defenders have been fear-mongering.

If the Freedom Act soon restores most of these provisions, as expected, the most lasting implications of the interruption in surveillance may be political. Paul’s colleagues, who have generally tolerated his use of the Senate as a platform so long as he doesn’t derail the actual flow of legislation, are unlikely to forget his stand. But Paul, a Republican campaigning as an outsider, has apparently decided that’s a trade-off he’ll happily accept.