The Justice Department warned lawmakers Wednesday that the National Security Agency will have to wind down its bulk collection of Americans' phone records by the end of the week if Congress fails to reauthorize parts of the Patriot Act.
Faced with the expiration of the law on June 1 and uncertainty on Capitol Hill, the department circulated a memo describing the powers that would lapse and the actions the NSA would have to take in advance to avoid legal challenges.
To renew the provisions before they expire, Congress must deal with them before lawmakers leave town for the weeklong Memorial Day recess. The issue has divided Republicans and Democrats, cutting across party lines and pitting civil libertarians concerned about privacy against more hawkish lawmakers fearful about losing tools to combat security threats.
"After May 22, 2015, the National Security Agency will need to begin taking steps to wind down the bulk telephone metadata program in anticipation of a possible sunset in order to ensure that it does not engage in any unauthorized collection or use of the metadata," the Justice Department said.
Last week the House backed the USA Freedom Act, which would replace bulk collection with a system to search data, to be held by telephone companies, not the government, on a case-by-case basis. The vote was 338-88, and House Republican and Democratic leaders have insisted on their bill.
But Senate Majority Leader Mitch McConnell, R-Ky., and several other top Republicans prefer to simply reauthorize the elements of the Patriot Act, which was enacted in the wake of Sept. 11. He has agreed to allow a vote on the House bill but has indicated that there may not be enough votes for it to pass in the Senate.
If the Patriot Act's provisions expire, the government will lose the authority not only to collect bulk data but also to issue roving wiretaps, which the FBI uses for criminals who frequently switch cellphones, and to easily obtain warrants to target lone-wolf terrorism suspects who have no documented links to groups deemed terrorist organizations.
The Justice Department said that if legislators allow those elements to expire and reauthorize them after the recess, that would "be effective in making the authorities operative again but may expose the government to some litigation risk in the event of legal challenge."
The White House backs the House bill and has pressed for the Senate to approve the legislation and send it to President Barack Obama for his signature.
The House bill is the result of bipartisan outrage after former NSA contractor Edward Snowden's revelations about the NSA data collection program.
The Republican divisions over the issue were on stark display in the Senate on Wednesday, as Sen. Rand Paul, R-Ky., a candidate for president in 2016, stood on the floor and spoke at length about his opposition to NSA spying.
"I will not let the Patriot Act, the most unpatriotic of acts, go unchallenged," he said when he took to the Senate floor at 1:18 p.m.
Within an hour, he sent out a fundraising appeal describing his effort as a "filibuster" to stop the extension of the "unconstitutional and illegal domestic spying programs." Although he called it a filibuster, it technically fell short of Senate rules, since the bill under consideration at the time in the Senate dealt with trade, not the Patriot Act.
"I don't think we're any safer looking at every American's records," Paul said
Throughout the night, several Democratic senators and a few Republicans gave his voice occasional breaks by speaking several minutes to ostensibly ask him questions. Paul kept control by yielding for questions without "yielding the floor," and by not sitting.
He finished at 11:49 p.m., having not sat down for more than 10 hours.
Fellow Republicans were not overly concerned by Paul's move.
"I think many of us anticipated that he would probably at some point use the floor on Patriot Act, on FISA, so I guess if he's going to, doing it now, as opposed to doing it on the weekend, is maybe preferable," said Sen. John Thune, R-S.D.
Although Paul called his action a filibuster, it technically fell short of Senate rules since the bill the Senate was considering was trade, not the Patriot Act.
The Associated Press