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The National Security Agency's authority to collect troves of bulk telephone metadata is set to expire Monday amid congressional gridlock on the controversial program — a high stakes showdown one senior Obama administration official called "playing national security Russian roulette."
The Senate will meet for a rare Sunday session in an effort to reach a compromise that would extend the program in some way. However, Senate leadership aides admit that the bulk data collection program will likely sunset briefly while Congress tries to find a solution, and Sen. Rand Paul of Kentucky, a Republican presidential candidate, says he will block any attempt Sunday to quickly pass a bill to stop the sunset.
Even a brief sunset of the program, which would happen at midnight ET if Congress fails to act, would result in the NSA's being unable to collect that data if a new terrorism threat were to surface.
Two other programs involving "roving wiretaps," which help 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, are also set to expire. All three programs were established as a part of the USA PATRIOT Act, which was passed in 2001 in the wake of the 9/11 attacks, and any investigations that began before the sunset occurred would be allowed to continue.
"We've only got a few days," President Barack 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."
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.
In recent days, the White House has redoubled efforts to influence public opinion on the controversial issue of mass surveillance. White House press secretary Josh Earnest appeared on MSNBC's "Morning Joe" last week to stress that the administration has worked to reform the controversial bulk collection program in a way that better protects civil liberties while helping national security investigators thwart terrorist threats.
"The government is no longer in the business of holding this bulk data. We have reformed this program in a way to protect our civil liberties," Earnest said Thursday. "But what we need to make sure doesn't get lost are those protections that are not controversial, and these are authorities that our law enforcement professionals use every day in law enforcement investigations, that our national security officials need to construct terrorism investigations."
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 allegiances between a series of political odd couples and driving divisions between political friends.
Last week, when Paul launched a more than 10½-hour filibuster-like speech on the Senate floor to protest the renewal of the Patriot Act, highlighting his opposition to the NSA's controversial bulk collection of telephone data, Sen. Ron Wyden, D-Oregon, rushed to his aid.
Wyden threw questions back and forth to Paul, a technique aimed at giving the main speaker a break.
On Friday, The New York Times editorial board advocated letting the Patriot Act provisions expire.
Earnest suggested that the current standoff in the Senate was a "Kentucky feud" between Senate Majority Leader Mitch McConnell and Paul, the junior senator from Kentucky.
There is a "pretty long history in Kentucky of pretty heated feuds," Earnest said Friday. "There seems to be a feud right now between McConnell [who has urged a clean extension] and Paul. Unfortunately, the victim of that feud is the risk facing our national security and legislation that would protect privacy and security."
McConnell has often been the chief attack dog and a strident critic of many Democratic policies, especially when his party was in the minority in the Senate, but now that he is responsible for passing legislation as the majority leader, political fractures have developed.
And McConnell is also at odds with a political ally, House Speaker John Boehner, after the Ohio Republican ushered a bill through the House that passed with a majority of both Republicans and Democrats.
At this point, the only way Congress can avoid a sunset of the NSA's bulk data collection program is if it passed a bill that overwhelmingly passed in the House earlier this month. That bill, titled the USA Freedom Act, 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.
The USA Freedom Act failed to reach the 60 votes needed to advance in the Senate in a late-night session before the Memorial Day weekend, with high-profile opponents of the legislation such as Sen. Richard Burr, R-North Carolina, and McConnell actively lobbying against the measure. Opponents of the House-passed bill say it does not go far enough to ensure that telecom companies will have a system in place to hold the data, and they are concerned that the bill does not require telecom companies to hold onto that data for any set period of time.
Burr, who chairs the Senate Intelligence Committee, introduced a framework last week for an alternative to the House-passed bill that would give the telecom companies two years to establish a system to hold data, up from the six months currently allowed in the House version. But even if the Senate were able to pass an alternative version of the USA Freedom Act late Sunday, the House is not scheduled to return until Monday afternoon, hours after the programs will have already sunset.
"I think the Senate has to find a way to vote for the House bill not because it's the perfect but because it's certainly better than having nothing at all, and that's what's going to happen," Rep. Peter King, R-New York, a member of the House Intelligence Committee told NBC News' Andrea Mitchell on Thursday.
Even a short-term extension has proven to be elusive in the Senate, where a two-month clean extension received only 45 votes late Friday. A handful of even shorter extensions were all blocked by objections from a group of senators, including Paul.
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.
Senate rules do not allow for a bill to go directly to the Senate floor for a vote, and instead require all 100 senators to agree if they want to bypass those rules and vote immediately on a bill.
Paul's objection Sunday, according to Senate leadership aides, could delay any vote on a bill to address the sunsetting programs until at least Tuesday, by which time the programs will have already been shuttered.
"I think it's a fight worth having," Paul said during a campaign event in Clinton, Iowa, on Thursday. "I have some detractors who say we shouldn't be having this fight or why this fight again, they aren't real happy with me that I made them work on their vacation weekend last week and I'm making them come back on Sunday because I still object to this thing passing."
"I may not win the battle, but at the very least I want to draw attention," Paul said.
If the bulk collection program is allowed to sunset Monday, some lawmakers believe it may mark the end of the program entirely, as a vote to restart the program has become increasingly tough from a political standpoint.
"If the Senate chooses to allow these authorities to expire, they should do so knowing that sunset may be permanent," Reps. Bob Goodlatte, R-Virginia, John Conyers, D-Michigian, Jim Sensenbrenner, R-Wisconsin, and Jerrold Nadler, D-New York, said in a bipartisan statement last week. "Nearly every member of the House of Representatives demands reform to these authorities."
Chris Jansing and Leigh Ann Caldwell of NBC News contributed to this report.