- The Washington Times - Wednesday, May 6, 2015

Senate Majority Leader Mitch McConnell is pushing the debate on the NSA’s phone-records snooping program to the last possible moment, hoping to win a full extension of the Patriot Act by leaving his colleagues with a take-it-or-leave-it choice.

With a June 1 deadline looming, Mr. McConnell, Kentucky Republican, said he is not going to debate the Patriot Act until the last week of May, leaving little time to work out a deal with the House, which is moving in the other direction — working on a bill that would scrap the National Security Agency’s phone program and all other bulk collection under the Patriot Act.

Civil rights advocates say he is making a gamble: that lawmakers will be so scared to let the powers lapse altogether that they would accept a complete extension.

“Given the time constraints we have, we have to do something on FISA before the end of the month. I think, most likely, the outcome is some kind of extension,” Mr. McConnell said this week, referring to the Foreign Intelligence Surveillance Act, the 1970s-era law that was expanded by the 2001 Patriot Act.

Those time constraints, however, are a creation of Mr. McConnell’s own schedule. He has insisted on carving out floor time to debate a major trade bill, putting the Patriot Act debate off until the week of May 25.

Democrats said that was the wrong way to handle the schedule because there is no firm deadline for the trade bill, while the Patriot Act must be dealt with before June 1 or a few of its key powers will expire.

The problem is a matter of time and math. A majority of lawmakers would probably like to see some snooping powers preserved, but with limits that would prevent the kind of bulk collection that the NSA employs right now. Then there are smaller minorities on both extremes: those who want to see the powers preserved as-is and those who want to end them entirely.

The House next week will vote on a limiting bill, dubbed the USA Freedom Act, that would prevent the federal government from indiscriminately collecting and storing Americans’ data under Section 215 of the Patriot Act, and would also impose more transparency on the secret court that oversees intelligence collection. In a move to gain support of some hawks, the bill also imposes raised prison sentences on those convicted of providing material support to terrorists.

That bill earned overwhelming bipartisan support in the House Judiciary, and is expected to easily clear the full House with the support of Speaker John A. Boehner.

“It’s not everything that I want, but I think it’s a solid agreement,” the Ohio Republican said.

That puts him at odds with Mr. McConnell, whose bill would extend Section 215 for a full five years, to 2020. Under normal times, the House and Senate would pass their bills and then work out a compromise, as they just did last month on the budget, but with Mr. McConnell delaying, it leaves little time for deal-making.

“That seems to be the aim of some folks, and Senator McConnell in particular, to run out the clock,” said Rita Siemion, policy counsel at The Constitution Project. “It’s an irresponsible approach to just let the time tick away rather than take this up when there’s still time to do so.”

Her group signed on to a letter Wednesday by a coalition of groups ranging from the American Civil Liberties Union and the NAACP to the tea party-backing FreedomWorks and Second Amendment supporters Gun Owners of America.

President Obama has said he wants to see changes to the NSA program, and the White House this week offered praise for the House bill reining in the Patriot Act, calling it “common-sense reform legislation that has bipartisan support.”

Sen. Mike Lee, a Utah Republican who supports the House bill, said he’ll try to insist that the Senate debate and vote on amendments, and will try to make the House bill a part of that.

But he waved off questions about what he’d do if it comes to an up-or-down choice between extending Section 215 as-is or letting it expire.

“Because there are a lot of moving parts to things like this, I don’t usually outline exactly what the procedural tactics are going to be, but I intend to fight aggressively for amendments,” he said.

But Sen. Richard Burr, chairman of the Senate intelligence committee who co-wrote the bill with Mr. McConnell, said, from his standpoint, passing the House bill has the same effect as letting Section 215 expire: The government would lose valuable tools and would be pushed back to “a pre-9/11 policy” in terms of intelligence gathering.

He said he wished the NSA program had never been revealed, but said now that it is out there, the debate has been marred by misinformation that makes it appear worse than it is. Mr. Burr said Americans turn over more data to their supermarket every time they check out using a bonus card than the NSA collects from the phone program, and Mr. Burr said there have never been any documented abuses in the program.

Still, he said preserving the program will be difficult.

“It’s an uphill climb for me, given where public sentiment is,” Mr. Burr said.

Critics say the program, revealed two years ago by former government contractor Edward Snowden, has never been shown to have stopped any terrorist plots.

Ms. Siemion said there’s an additional problem of a straight reauthorization, even if it’s just for a few months: Right now, there’s a debate over whether Congress intended for Section 215 to allow for bulk data collection. The author of the Patriot Act, Rep. F. James Sensenbrenner Jr., Wisconsin Republican, has insisted that wasn’t the intent, either in the initial law or later reauthorizations.

But supporters say since Congress did reauthorize it while the bulk collection was ongoing, and known to a number of lawmakers, it suggests Capitol Hill did approve it.

Ms. Siemion said even a temporary reauthorization now would confirm that legal stance, undercutting court challenges to the program.

Former Rep. Peter Hoekstra, who learned of the program when he served as chairman of the House intelligence committee from 2004 to 2007, challenged that argument, saying that by the latter part of the last decade, enough members of Congress knew about the activities.

“I think you could say Congress all along has put its stamp of approval on this program,” he said.

Mr. Hoekstra also challenged the claim that the NSA program hasn’t stopped any attacks, saying that the information gleaned — the database is only queried when officials believe a phone number is related to a terrorism investigation — helps paint a full picture.

“Very seldom can you go back to any single intelligence technique and say this intelligence technique all by itself gave us this end result. This is just one piece of putting together a very big and difficult jigsaw puzzle,” he said.

The former congressman said he supports having the capability to check numbers, though he isn’t tied to having the data stored by the NSA itself.

He predicted the most likely outcome of the current fight will be a short-term extension that gives all sides a chance to work out a deal — though not for too long.

“The longer the extension is, the more difficult it becomes,” he said, predicting that Oct. 1 was about as far as Congress would be willing to go on an extension. “You start getting toward the end of this year, campaigns are going to start revving up and all that.

“The bottom line right now is I don’t think there’s enough votes for a five-year extension, and there’s clearly not enough votes for the USA Freedom Act, so what you’re going to have to do is find a position in between,” he said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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