Senate blocks House bill on NSA surveillance. What happens next?

A divided Senate on Saturday defeated legislation that would end the government’s surveillance program and failed to extend the Patriot Act past its deadline.

The surveillance standoff in Congress continues.

A splintered Senate on Saturday rejected legislation that would end the federal government’s mass data collection program and failed to agree on efforts to extend the Patriot Act, which is at risk of lapsing once it expires June 1.  

The Senate’s continued struggle to find common ground on a critical security issue highlights the fractured and polarizing nature of the debate around government surveillance, even as lawmakers face increasing pressure to find compromise over reforms that would both ensure national security and respect Americans’ privacy. Still, there may be a way forward.

“We must recognize that striking the ‘right’ balance between personal liberty and national security requires constant attention and reassessment,” former National Security Agency director Keith Alexander and American Civil Liberties Union adviser Geoffrey Stone co-wrote in an op-ed for The Christian Science Monitor Saturday.

“This is especially true following periods of crisis, when there is understandable pressure to tip the scales in favor of national security,” they continued.

The White House has urged the Senate to back the latest version of the USA Freedom Act, which passed with overwhelming bipartisan support in the House earlier this month. The bill would end the NSA’s bulk collection of phone records in favor of leaving the records in the hands of phone companies subject to case-by-case review, according to the Associated Press.   

The measure, however, died on the Senate floor early Saturday on a 57 to 42 vote – three shy of the number required to move forward. A vote to extend the program as it exists for two months also fell short of the 60-vote threshold, as did subsequent votes for increasingly shorter renewal periods.

Majority leader Sen. Mitch McConnell (R) of Kentucky, who led the charge to extend the surveillance program, has insisted that the reforms in the USA Freedom Act dilute the NSA’s power to protect the American public in the face of growing terrorist peril.

“This is a high-threat period,” Sen. McConnell said, according to The New York Times.

But McConnell faced heavy opposition primarily from presidential contender Rand Paul (R) of Kentucky, who blocked any extension of the Patriot Act – no matter how brief – past the midnight May 31 deadline. Sen. Paul’s efforts followed a marathon protest Wednesday night, during which he railed against the surveillance programs authorized under Section 215 of the Patriot Act and urged reforms, CNN reported.

“There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer,” Paul said to open his nearly 11-hour speech on the Senate floor Wednesday. “That time is now and I will not let the Patriot Act, the most unpatriotic of acts, go unchallenged.”

The House bill did have some bipartisan support in the Senate, with Sen. Patrick Leahy (D) of Vermont and Sen. Mike Lee (R) of Utah working to assemble votes on both sides of the aisle. But Sen. Lee “was unable to convince a handful of wavering Republicans to support the bill,” the Times reported.

The Senate deadlock could force the NSA to end its data surveillance program and to scramble to find legal authorities for access to data it needs for its other missions.

The former may not be as much of a security issue as McConnell and his supporters contend: “Throughout the lifetime of the once-secret program, which began in October 2001, it has never been the difference maker in thwarting any terrorist attack, according to testimony and government reports,” according to the Times.

The latter may present a more complex problem. Prior to the vote, Rep. Adam Schiff (D) of California, the top Democrat on the House Intelligence Committee, told the Monitor that such a breach in the intelligence community’s programs as a result of a Senate impasse would be “the least desirable” of all outcomes.

Should that occur, Rep. Schiff said, the Obama administration would need to step in.

“I think they should end the program, and find an alternate means to get the information,” he told reporters at a breakfast hosted by the Monitor.

The Senate does have one more chance to find a compromise: They’re due to meet again on May 31.

“We better be ready next Sunday afternoon,” McConnell said on the Senate floor, after. The session, he added, will be an “opportunity to act responsibly and not allow this program to expire.”

The divided opinions in the Senate have experts doubting whether anything can be achieved before the Patriot Act’s deadline.

But in their op-ed for the Monitor, former NSA director Mr. Alexander and law professor Mr. Stone hope otherwise.

“If a constitutional law professor and an American Civil Liberties Union advisory board member can find common ground with a former director of the National Security Agency and Army general,” they wrote, “then Congress should be able to arrive at a compromise on surveillance reform as well.”

They added:

We should continue to look for other steps the nation can take to increase the protection of privacy and civil liberties, while still enabling the government to carry out its obligation to keep our nation safe. We would support reasonable measures to increase transparency, as well as greater efforts to enlist the help of the technology community to come up with solutions that increase privacy protection.

We need to do this not only to preserve our fundamental values of privacy, civil liberties, and individual liberty, but also to ensure that our intelligence agencies have the tools necessary to protect the nation, along with the trust and confidence of the American people.