Mitch McConnell Refuses to Budge on Patriot Act After Court Ruling Imperils NSA Spying

The majority leader, joined by other Republicans, gave a bold defense of the program just hours after a federal court ruling.

 Sen. Majority Leader Mitch McConnell answers questions following the Senate policy luncheons at the U.S. Capitol April 21, 2015 in Washington, DC.
National Journal
May 7, 2015, 7:50 a.m.

Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell on Thursday de­livered a force­ful de­fense of the Na­tion­al Se­cur­ity Agency’s mass-sur­veil­lance powers, a salvo that came just hours after a fed­er­al ap­peals court ruled the agency’s bulk col­lec­tion of U.S. call re­cords il­leg­al.

Mc­Con­nell cri­ti­cized bi­par­tis­an le­gis­la­tion that would re­form sev­er­al as­pects of NSA spy­ing and ef­fect­ively end the call-re­cords pro­gram, and in­dic­ated he won’t budge from his po­s­i­tion ad­voc­at­ing a clean reau­thor­iz­a­tion of ex­pir­ing sur­veil­lance au­thor­it­ies of the Pat­ri­ot Act.

“The USA Free­dom Act would re­place Sec­tion 215 with an un­tested, un­tried, and more cum­ber­some sys­tem. It would not end bulk col­lec­tion of call data,” Mc­Con­nell said, re­fer­ring to the pro­vi­sion of the Pat­ri­ot Act that the NSA says jus­ti­fies its bulk data sweeps. “In­stead, it would have un­trained cor­por­ate em­ploy­ees with un­cer­tain su­per­vi­sion and pro­to­cols do the col­lect­ing. So it switches this re­spons­ib­il­ity from the NSA, with total over­sight, to cor­por­ate em­ploy­ees with un­cer­tain su­per­vi­sion and pro­to­cols.”

Earli­er Thursday, the U.S. Court of Ap­peals for the Second Cir­cuit ruled the phone drag­net il­leg­al. Judge Ger­ard Lynch said Con­gress needed to either provide the prop­er au­thor­ity for the pro­gram, re­form it sub­stan­tially, or let it ex­pire on June 1.

Sen. Tom Cot­ton, an out­spoken and hawk­ish fresh­man, spoke on the floor in sup­port of Mc­Con­nell. He ar­gued that private com­pan­ies would be ill equipped to handle the de­mands of the NSA.

The cur­rent bulk data-col­lec­tion pro­gram, he said, “helps close the gap that ex­is­ted between for­eign in­tel­li­gence gath­er­ing and stop­ping at­tacks at home be­fore 9/11.

“This is the gap that con­trib­uted in part to our fail­ure to stop the 9/11 at­tacks,” said Cot­ton, who has been lead­ing brief­ings in re­cent weeks among mem­bers in a bid to pre­serve the sur­veil­lance pro­gram and thwart re­form ef­forts. Cot­ton, not­ably, voted for a less ro­bust ver­sion of the Free­dom Act when it passed the House one year ago.

Cot­ton ar­gued that if sen­at­ors are not con­vinced that “the wolves are at the door,” then maybe they should be at­tend­ing clas­si­fied brief­ings more reg­u­larly. And he ar­gued that it makes sense, be­cause of the sens­it­ive is­sues in­volved, for the Sen­ate to de­bate NSA re­form in a closed ses­sion.

Sen. Richard Burr, the chair­man of the Sen­ate In­tel­li­gence Com­mit­tee, also spoke on the floor, say­ing Amer­ic­an gro­cery stores col­lect more data on Amer­ic­ans than the NSA. His point was that Amer­ic­ans’ pri­vacy is not at risk, but their se­cur­ity is.

“Make no mis­take about it, the com­prom­ise le­gis­la­tion rolls us back to the same thing we were do­ing pre-9/11,” Burr said.

Sen. Marco Ru­bio, who is run­ning for pres­id­ent, joined the oth­er sen­at­ors in the pro­gram’s de­fense, and took the op­por­tun­ity to knock some of his 2016 com­pet­i­tion.

“A per­cep­tion has been cre­ated, in­clud­ing by polit­ic­al fig­ures that serve in this cham­ber, that the United States gov­ern­ment is listen­ing to your phone calls or go­ing through your bills as a mat­ter of course. That is ab­so­lutely, cat­egor­ic­ally false,” Ru­bio said. “The next time that any politi­cian—sen­at­or, con­gress­man, talk­ing head, whatever it may be—stands up and says that the U.S. gov­ern­ment is listen­ing to your phone calls or go­ing through your phone re­cords, they’re ly­ing. It just is not true.”

Ru­bio also said that “if this pro­gram had ex­is­ted be­fore 9/11, it is quite pos­sible” that the U.S. would have known about one of the hi­jack­ers, and “there is a prob­ab­il­ity that Amer­ic­an lives could’ve been saved.

“One day—I hope that I’m wrong—but one day,” Ru­bio said, “there will be an at­tack that’s suc­cess­ful. And the first ques­tion out of every­one’s mouth is go­ing to be, ‘Why didn’t we know about it?’ And the an­swer bet­ter not be be­cause this Con­gress failed to au­thor­ize a pro­gram that might have helped us know about it.”

Mc­Con­nell last month sur­prised many of his col­leagues when he in­tro­duced a bill that would ex­tend Sec­tion 215 of the Pat­ri­ot Act un­changed for an­oth­er five and a half years, un­til Decem­ber 2020. The au­thor­ity, in ad­di­tion to two oth­er sur­veil­lance au­thor­it­ies, is cur­rently due to ex­pire on June 1 of this year.

The Free­dom Act is ex­pec­ted to eas­ily pass the House of Rep­res­ent­at­ives next week, and the meas­ure has sub­stan­tial sup­port in the Sen­ate; an earli­er it­er­a­tion of the bill fell just two votes short of ad­van­cing through the up­per cham­ber in Novem­ber.

But Mc­Con­nell’s gam­bit faces heavy res­ist­ance from Demo­crats, the House, and even some fel­low Sen­ate Re­pub­lic­ans such as Rand Paul, who has vowed not to let any ex­ten­sion of the Pat­ri­ot Act go through.

“These Re­pub­lic­ans are ig­nor­ing the find­ings of na­tion­al se­cur­ity ex­perts that this pro­gram is un­ne­ces­sary, and the de­cision by a fed­er­al ap­pel­late court earli­er today that the pro­gram is il­leg­al,” said Sen. Patrick Leahy, the top Demo­crat on the Sen­ate Ju­di­ciary Com­mit­tee and an au­thor of the Free­dom Act. “Nev­er­the­less, these Re­pub­lic­ans seem in­tent on demon­strat­ing that they are wholly out of touch with the facts, the law, and the Amer­ic­an people on this is­sue.”

Some Re­pub­lic­ans, in­clud­ing Ma­jor­ity Whip John Cornyn, have said they may try to of­fer a short-term ex­ten­sion of the Pat­ri­ot Act be­cause the clock is run­ning out. But Leahy made clear that op­tion was off the table in his view—something that sev­er­al Re­pub­lic­ans in the House have also stated.

 “I will not agree to any ex­ten­sion of this pro­gram,” Leahy said. “Con­gress should take up and pass the bi­par­tis­an USA Free­dom Act, which would ban bulk col­lec­tion un­der Sec­tion 215 and en­act oth­er mean­ing­ful sur­veil­lance re­forms.”

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