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After the Patriot Act Provisions Sunset, What's Next?

by Halimah Abdullah /  / Updated 

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Now that the National Security Agency’s authority to collect troves of bulk telephone metadata under the Patriot Act expired at midnight on Monday, the government has said it has fewer tools in its arsenal to help thwart terrorism.

Senate Majority Leader Mitch McConnell sought a two-week extension Sunday of two less controversial provisions of the Patriot Act, but that effort was blocked by Sen. Rand Paul, a fellow Kentucky Republican who is running for president partly on his strong objections to the surveillance programs.

"Tonight we stopped the illegal NSA bulk data collection," Paul said in a statement. "This is a victory no matter how you look at it. It might be short lived, but I hope that it provides a road for a robust debate, which will strengthen our intelligence community, while also respecting our Constitution."

So which counterterrorism tools lapsed?

The biggie was “Section 215," which authorized the NSA's bulk collection of telephone metadata — information that includes who called whom when, but not what was said.

Two other programs involving "roving wiretaps," which helps the FBI use a warrant to track terrorism suspects who frequently switch cellphones, and a never-used program to monitor potential "lone wolf" suspects, who haven’t been tied to terrorist groups, also expired. All three programs were established as a part of the Patriot Act, which was passed in 2001 in the wake of the Sept. 11th attacks and any investigations that began before the sunset occurred would be allowed to continue.

Even a brief sunset of the program means the NSA is—for the time being—unable to collect that data if a new terrorism threat were to surface.

Do we need these programs?

Depends on whom you ask.

A senior White House official, speaking on background, said there are other tools that investigators could use, however, it will take time to inform FBI field offices of the new guidance, and there are certain types of information that it won't be able to get. White House press secretary Josh Earnest, when pressed by NBC News’ Kristen Welker, said specifics linking the bulk collection of metadata to preventing a terrorist attack are “classified” and the programs are “important building blocks to investigations that protect the American people.”

Absent the use of those tools, counterterrorism efforts will continue.

Is the country now at risk of attack?

The Obama administration says yes. On Friday, President Barack Obama expressed concern the lapse of these programs could leave America vulnerable.

"We've only got a few days," Obama said Friday. "These authorities expire on Sunday at midnight, and I don't want us to be in a situation in which, where for a certain period of time, those authorities go away and suddenly we're dark and, heaven forbid, we've got a problem where we could have prevented a terrorist attack or apprehended someone who was engaged in dangerous activity but we didn't do so simply because of inaction in the Senate."

Attorney General Loretta Lynch and Director of National Intelligence James Clapper have expressed similar concerns about America’s national security.

Sen. Paul isn’t buying it.

Nor are civil liberties advocates who cite concerns about government overreach and privacy concerns. On Friday, The New York Times editorial board also advocated letting the Patriot Act provisions expire.

How much of this is about politics?

Quite a bit.

The issue of civil liberties has long brought together sectors on the left and right ends of the ideological spectrum as both are skeptical of an overreaching government, especially since the government increased its surveillance of U.S. citizens in a post-9/11 era.

The odd coalition is continuing and front and center in this round of debate over the Patriot Act. It’s forging allegiance between a series of political odd couples and driving divisions between political friends.

Paul has been heavily campaigning for president on his stand against extending the bulk collection program, selling a "Filibuster Starter Pack" including a T-shirt, a bumper sticker and a laptop webcam "Spy Blocker" to raise money.

Over the weekend, Paul tweeted that he would block the Senate on Sunday from finishing any piece of legislation to reform or reauthorize the bulk collection program, saying, "I believe we must fight terrorism, and I believe we must stand strong against our enemies, but we do not need to give up who we are to defeat them."

"I will force the expiration of the NSA illegal spy program," Paul tweeted.

Fellow Republicans, particularly Sen. John McCain of Arizona, denounced Paul, accusing him pf playing politics with the nation's safety. McCain said Paul was placing "a higher priority on his fundraising and his ambitions than on the security of the nation."

So what’s next?

The government started dismantling portions of the bulk data collection program last week so as to not run afoul of legal guidelines, the administration officials said last week. Similarly, the Department of Justice communicated the likelihood of potential changes in protocol to telecommunications companies.

In the meantime, the Senate was able to derive some value out of Sunday's rare session by advancing the 'USA Freedom Act' - a bill that overwhelmingly passed in the House earlier this month. That bill received 338 votes and would move the storage of telephony metadata from being held by the government to being held by the telecom companies, instead.

Paul has introduced at least 10 amendments to the Senate substitute version of the bill. Republican leadership aides say none of them will get a vote as that would require all 100 Senators to agree which is highly unlikely.

Final votes on a compromise version of the 'USA Freedom Act' as well as several related amendments may occur as soon as Tuesday.

— Frank Thorp V, M. Alex Johnson and Leigh Ann Caldwell contributed.

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