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The Senate looks poised to defeat a House-passed bill that would move the bulk collection of telephone metadata from being held by the government to being held by telecom companies instead.
The way forward on a short-term extension is uncertain as the House has left town for the month and will not return until after the provisions are set to expire on June 1st. The uncertainty leaves that provision, called “Section 215 of the USA PATRIOT Act”, on its way to expiring on June 1st with no real path to being reauthorized before it lapses for at least a brief period of time.
"I think the House-passed bill will fail, and I don't know about a two month extension at this point because that leaves us in a kind of a bit of a bind I would say," Sen. John Thune, of South Dakota, a member of Republican leadership, told reporters on Thursday, "So we're going to see where the votes are."
Justice and National Security officials warn that if the Senate does not pass the compromise replacement legislation for the Patriot Act before the Memorial Day holiday recess the National Security Agency will have to start dismantling bulk collection of metadata records to avoid both practical and legal problems.
In a memo sent from the Department of Justice to Congress on Wednesday, the NSA has said they would begin to wind down the bulk collection program if Congress fails to act by Friday, saying they would be doing so "in order to ensure that it does not engage in any unauthorized collection or use of the metadata."
Senate Republicans expect to vote on two options in the coming days to reauthorize or reform the expiring provisions of the Foreign Intelligence Surveillance Act — which prescribes how foreign intelligence is gathered.
The options are the House-passed USA Freedom Act, and a short-term 60 day extension, both of which could fail. If both fail to get the 60 votes needed to proceed, Senate Republicans say an even shorter-term bill could be introduced in an effort to stop the program from expiring.
"Nobody wants us to go dark on our ability to detect terrorist activity," Senate Majority Whip John Cornyn, R-Texas, told reporters, "So I imagine there will be some very urgent discussions" about next steps if both the USA Freedom Act and a 60-day extension fail.
On May 13, the House overwhelmingly passed the USA Freedom Act by a vote of 338-88. The bill would take the storage of bulk telephony metadata away from the government and would instead rely on the telecom companies to hold the data, where it could then be obtained with a subpoena.
But because the House has left for the month, and will not be in session until the afternoon of June 1st, the only bill that has any path to being signed into law by President Obama is the House-passed USA Freedom Act.
If the USA Freedom Act fails in the Senate, and they instead pass a short-term bill, the House will not be able to consider it until after they return, and by that time the program will have sunset. House Republican leadership aides say there are no plans to come back in session before then to pass any possible short-term extension.
"The worst possible outcome is that the program lapses at a time when the threat level has never been higher since 2001, that's just totally unacceptable to us," Sen. Dan Coats, an Indiana Republican, and a member of the Senate Intelligence Committee, told reporters, "I think the stark reality is if we get to the point where the program goes dark at this time at this threat level we're running a dangerous, dangerous course."
According to a report by the Congressional Research Service, the section of the PATRIOT Act that is used to authorize the government's collection of bulk data would sunset at 12:00:01amET on June 1st if Congress fails to act.
"I think it's a real problem, but I think the overwhelmingly majority know that we can't just let the whole program lapse," Sen John McCain, R-Ariz., told reporters, "They're searching around for different ways to prevent that from happening. Nobody wants that to happen except for Senator Paul."
Sen. Rand Paul, R-Ky., took to the Senate floor Wednesday and spoke in a 10 ½-hour filibuster-like speech in opposition of the government's bulk collection of data . Paul has said he would oppose not only any clean extension of the program, but also the USA Freedom Act, which he says does not go far enough.
But any clean extension of the program will have a tough path to passing, as the controversial bulk data collection program which was unearthed by whistleblower Edward Snowden is politically toxic to many lawmakers on both sides of the aisle.
"I'm strongly opposed to a short-term extension (of the bulk data collection program)," Sen. Ron Wyden, D-Ore. told reporters. "The reality is this bulk phone records collection program, which I consider to be a federal human relations database, is a badly flawed program that some of the anti-terror leaders in the past have said does not make America safer."
Many of the opponents in the Senate of the House-passed bill are concerned that there are no assurances regarding how long the telecom companies will hold onto the data, and they believe that the process to get that data from the telecom companies could delay an investigation. House Speaker John Boehner, R-Ohio said today that he believes the Senate misunderstands their bill.
"I do think that there is a big disconnect in terms of how they view our bill, and I've been surprised by it," Boehner said today, "But at the end of the day, we've got to work our way through this issue, and I'm confident at some point we will."