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Parts Of Patriot Act Expire, Even As Senate Moves On Bill Limiting Surveillance

Senate Majority Leader Mitch McConnell, R-Ky., walks from the Senate chamber after opening a special session to extend surveillance programs in Washington on Sunday.
Cliff Owen
Senate Majority Leader Mitch McConnell, R-Ky., walks from the Senate chamber after opening a special session to extend surveillance programs in Washington on Sunday.
(This post was last updated at 11:09 p.m. ET.)

It was a dramatic day on the floor of the United States Senate on Sunday. Unable to overcome parliamentary maneuvers by Sen. Rand Paul, the body adjourned and let three controversial provisions of the Patriot Act expire at midnight.

Trying to beat a midnight deadline during a rare Sunday session, Senate Majority Leader Mitch McConnell tried to fast track a House bill that would overhaul the government's bulk collection of Americans' phone records.

At around 7 p.m. ET, the House bill cleared a key procedural hurdle, but as the sun set on Washington, it became clear that a Senate rule allowing for 30 hours of debate would force parts of the Patriot Act to expire at least temporarily.

"The Patriot Act will expire tonight," Paul, the Kentucky Republican who has led the charge against the government's bulk collection program, said. "But it will only be temporary. They will ultimately get their way."

Before this session, Paul promised to use any parliamentary moves available to him to force any Senate vote on the measure to happen after the 12 a.m. deadline.

He was warned by lawmakers on both sides of the aisle that he was putting the country at risk.

"To go dark on this is a risk on Americans' lives," Sen. Dan Coats, an Indiana Republican, said on the floor of the Senate.

McConnell, the senior Republican senator from Kentucky, said that blocking this legislation should be "worrying for our country." McConnell said that even though he had vehemently opposed this bill previously — his chamber had also failed to move it forward earlier this week — he would attempt to pass it.

"We shouldn't be disarming unilaterally as our enemies grow more sophisticated and aggressive, and we certainly should not be doing so based on a campaign of demagoguery and disinformation launched in the wake of the unlawful actions of Edward Snowden," McConnell said.

Paul fired back, saying he worried that the House bill actually made the government better at collecting phone records in bulk. He said he couldn't trust the secret court tasked with interpreting the law and that he wanted to add amendments to the bill. He added that the U.S. is using fear to convince Americans of the need for these programs, but the country already has the tools to fight terrorists. They could seek warrants, he said, instead of dragging Americans into what he said was an unconstitutional surveillance system.

"Mark my words," he said, "the battle is not over."

At around 9:45 p.m. ET, after a lengthy break, McConnell took the floor again and admitted defeat. He offered several amendments to the House bill and adjourned until 12 p.m. ET on June 1, guaranteeing that parts of the surveillance programs instituted by the U.S. after the terrorist attacks of Sept. 11 would end entirely at least temporarily.

In a statement, White House press secretary Josh Earnest said that the Senate had taken "an important—if late—step forward tonight."

The White House has always supported HR 2048 — also known as the House's USA Freedom Act. The bill ends the bulk collection program as we know it. If passed, the government would still have access to the data, but it would now have to query databases kept by phone companies.

"We call on the Senate to ensure this irresponsible lapse in authorities is as short-lived as possible," Earnest said. "On a matter as critical as our national security, individual Senators must put aside their partisan motivations and act swiftly. The American people deserve nothing less."

We'll live-blogged the Senate action as it happened. Keep reading if you want a play-by-play.

Update at 11:03 p.m. ET. The Most Dramatic Moment:

We'll leave you tonight with video of the most dramatic moment of the night. It happened as Sen. Rand Paul tried to get five minutes to speak. Here's the video via Real Clear Politics:

Paul, by the way, goes on to win the parliamentary tousle, finally getting his five minutes.

Update at 10:19 p.m. ET. Irresponsible Lapse:

White House Press Secretary Josh Earnest issued the following statement:

"In January 2014—a year-and-a-half ago—the President called on Congress to reform elements of our electronic surveillance programs. The President and members of his team subsequently worked painstakingly with members of Congress from both parties to craft a sensible path forward. The result, the USA FREEDOM Act, struck a reasonable compromise balancing security and privacy—allowing us to continue to protect the country while implementing various reforms, including prohibiting bulk collection through the use of Section 215, FISA pen registers, and National Security Letters. National security professionals, civil libertarians, and 338 members of the House of Representatives—both Democrats and Republicans—agreed that the legislation allowed our intelligence and law enforcement professionals to retain key tools while strengthening civil liberty protections.

"The Senate took an important—if late—step forward tonight. We call on the Senate to ensure this irresponsible lapse in authorities is as short-lived as possible. On a matter as critical as our national security, individual Senators must put aside their partisan motivations and act swiftly. The American people deserve nothing less."

Update at 9:45 p.m. ET. Senate Adjourned:

The Senate has adjourned. Three provisions of the Patriot Act will expire at least temporarily.

Update at 9:34 p.m. ET. Senate Still In Session:

The Senate is still technically in session. A senator suggested the absence of a quorum, which has given the Senate time to figure out what will happen next.

Update at 9:31 p.m. ET. Strong Support For 'Comprehensive Reform':

In a statement, Michael Macleod-Ball, acting director of the ACLU Washington Legislative Office, said today's vote and the likely temporary end of the bulk collection program are a reflection of strong support for "meaningful and comprehensive reform of the surveillance laws."

He added: "Congress should take advantage of this sunset to pass far reaching surveillance reform, instead of the weak bill currently under consideration."

Update at 8:16 p.m. ET. What To Expect?

So, where do we stand right now? The Senate now has the ability to move on the House bill, but senators can debate the bill for 30 hours.

Manu Raju of Politico reports that Majority Leader McConnell "plans to employ a prerogative Reid rarely used: Making senators actually debate in post-cloture time — or he'll continue process."

Congressional Quarterly reports that a McConnell spokesman said there will " 'likely' be no more votes tonight."

This means three provisions of the Patriot Act are likely to lapse, if only temporarily.

Update at 8:00 p.m. ET. Bulk Collection Will Likely Lapse:

Wyden and Sen. Martin Heinrich, a Democrat from New Mexico, are still talking on the floor.

It's worth noting that according to White House officials, who briefed reporters last week, it is now likely there will be a lapse in the government's bulk collection program.

As we reported: While the statutory deadline is Monday, June 1, "senior administration officials said they have to begin winding down their surveillance programs at 4 p.m. ET on Sunday. That process, they said, could be aborted as late as 8 p.m. ET."

We are now past that window.

Update at 7:57 p.m. ET. Hard Questions:

Sen. Ron Wyden, a Democrat from Oregon, just finished a speech on the floor. Wyden has been a long-time critic of the bulk collection program.

During his speech, he reminded Americans that the administration had misled Congress in the past. He was specifically referring to a hearing in which he asked National Intelligence Director James Clapper if the National Security Agency collects "any type of data at all on millions, or hundreds of millions of Americans."

Clapper answered, "No sir," before adding, "not wittingly."

Clapper ended up apologizing for that answer.

Wyden said that's why the Senate has to ask the "hard questions."

"It is our job to ask the hard questions," Wyden said.

Update at 7:53 p.m. ET. What Does The House Bill Contain:

We've noted Paul's reservations about HR 2048 — or the House's USA Freedom Act.

From a previous post, here's what that bill would do:

"Under the bill, the United States would no longer be allowed to keep a massive database of call data. Instead, the data would remain with service providers and the government can seek court orders for specific records. ...

"The bill lifts the secrecy surrounding key decisions made by the secret Foreign Intelligence Surveillance Court. Going forward, some will be made public.

"This is important because it was that court that found bulk data collection constitutional. The legal reasoning remained secret for years. The Obama administration declassified some of those rulings after the Snowden leaks.

"HR 2048 also allows companies to challenge National Security Letter gag orders. That's a kind of subpoena issued by the FBI when it is seeking info about, for example, Internet companies' customers. The subpoenas also come with gag orders, so the companies are not allowed to notify their customers or even ask a court to intervene. This bill would allow companies to challenge the order."

Update at 7:42 p.m. ET. Patriot Act Will Expire:

Sen. Paul said: "The Patriot Act will expire tonight. But it will only be temporary. They will ultimately get their way."

With that, Paul stepped off the floor. Here's a quick recap of what he said:

  • He said one of his concerns is that this new bill will be interpreted by the secret Foreign Intelligence Surveillance Court, which he called the "rubber-stamp court" that had decided that the bulk collection of Americans' phone records was constitutional.
  • He said that another concern is that this bill would actually make the U.S. government "better at collecting our phone records" by giving them easy access to cellphone records as well as landlines.
  • He's concerned that all this bill does is move bulk data from the hands of the government to the hands of phone companies.
  • Therefore, Paul is offering a few amendments: The first would only let the government query the records of "specific individuals." The second would change the standard for getting those records. The government would have to show it has probable cause instead of just showing that the records are "relevant" to a terrorism investigation. The third amendment he will propose would dictate that any information collected in a "less than constitutional manner" is only used against foreigners or terrorists.
  • Update at 7:28 p.m. ET. 'Bill Will Ultimately Pass':

    Sen. Rand Paul took to the floor shortly after the cloture vote passed. He conceded that the House bill would "ultimately pass," but "tonight begins the process of ending bulk collection."

    His issue with the House bill, he said, is that Congress may just be replacing one bulk collection program with another.

    "It's hard for me to have trust in the people who we are giving great power to," Paul said.

    The senator from Kentucky said he would offer up amendments to the bill.

    Update at 7:08 p.m. ET. Procedural Vote Passes By Large Margin:

    The procedural measure to move onto the House bill ultimately passed by a large margin — 77 to 17.

    It means the Senate has overcome a major procedural hurdle, but any senator can still debate the measure for 30 hours.

    Update at 6:42 ET. Senate Clears Procedural Hurdle:

    The votes are still coming in, but the Senate has reached the 60 votes needed to limit debate and move on to the House bill.

    However, Paul, or any senator for that matter, can force the Senate to debate the matter for another 30 hours before they can vote on the bill. That is of course many hours after the midnight deadline.

    The vote so far: 75 in favor of cloture, 15 opposed.

    Update at 6:27 p.m. ET. Reconsidering House Bill:

    With a temporary extension off the table, Sen. McConnell said he had only two options: One, let the programs expire. Two, try to pass the House bill.

    The first option, he said, is "completely unacceptable." So, he said, he would move forward with the reconsideration of the House bill.

    That motion passed with a voice vote and the Senate is now voting to limit debate and move on to the House bill. That's also known as a cloture vote.

    As Fox's Chad Pergram reports on Twitter, that doesn't mean much because even if they get the 60 votes needed for cloture, "Paul can still require 30 hrs burn off clock before Senate can get on Hse's NSA bill. Means pgms would lapse."

    Update at 6:16 p.m. ET. McConnell Proposes To Extend Two Sections:

    Senate Majority Leader Mitch McConnell took to the floor to propose a very limited bill — one that would extend Sections 206 and 6001, the so-called roving wiretaps and lone wolf provisions.

    Just like that, Paul objected, and McConnell said that his objection should be "very worrying for Americans."

    "The nature of the threat is very serious," McConnell said; therefore, we should not be "disarming unilaterally."

    Update at 6:15 p.m. ET. Senate Reconvenes:

    The Senate has reconvened. Senate Majority Leader Mitch McConnell is on the floor.

    Update at 6:05 p.m. ET. The Debate So Far:

    While we wait for the Senate to reconvene, here's a little recap of what we've heard on the floor so far: Democratic Sens. Harry Reid and Patrick Leahy made the case that the Senate should act quickly to pass the House bill.

    Leahy said that it had been passed by the House in bipartisan fashion, and that it makes significant changes to the government's surveillance programs.

    Reid said that this is an important national security program. He said that CIA Director John Brennan and even Senate Republicans agree that allowing parts of this law to expire would "threaten our national security." In his words, this is "big time stuff."

    In his five minutes, Sen. Paul essentially scoffed at that notion.

    "How will we protect ourselves?" he asked. "What about using the Constitution? What about getting a warrant?"

    Update at 5:56 p.m. ET. What To Expect:

    Right now the Senate is in recess. Both parties are meeting to discuss how to go forward. When the Senate returns, we expect a series of votes to reconsider HR 2048 — also known as the House's USA Freedom Act.

    The Senate had already failed to move that measure forward earlier this month.

    Update at 5:48 p.m. ET. Early Drama:

    It did not take long for the drama to get started. About an hour into the session, Sen. Rand Paul asked to speak for five minutes. Sen. Chuck Grassley, a fellow Republican, shot him down, and Sen. John McCain, another fellow Republican, suggested Paul should learn the rules of the Senate.

    That's when Paul called for a live quorum — a roll call that determines whether a majority of the Senate is in the chamber to continue doing business. To speed things up, the live quorum was called off and Paul was given his five minutes.

    "This in important debate," Paul said. "This is a debate over the bill of rights, over the Fourth Amendment. ... It is a debate over your right to be left alone."

    Paul said that the surveillance programs put in place by Section 215 were illegal. Then he issued a warning: "I'm not going to take it anymore."

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    Eyder Peralta is NPR's East Africa correspondent based in Nairobi, Kenya.