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Senate Brinksmanship To End Surveillance Powers Under Patriot Act

After the Senate rejected the USA Freedom Act, a bill to reform NSA surveillance authority, the deadline to reauthorize parts of the Patriot Act will likely pass, ending the government's authority to collect in bulk Americans' phone data without a warrant. The fallout remains unclear.

Last updated on May 23, 2015, at 11:23 a.m. ET

Posted on May 22, 2015, at 6:54 p.m. ET

Jonathan Ernst / Reuters

U.S. Senate Majority Leader Mitch McConnell

As Edward Snowden looked on from afar, Congress scrambled to pass legislation to extend controversial provisions of the Patriot Act set to expire after May 31 — provisions described by supporters as vital law enforcement tools and by detractors as gross violations of the Constitution. The Senate, watching their colleagues in the House depart for the Memorial Day recess, will be called in for a rare, holiday-weekend session on the afternoon of the 31st, hours before the midnight deadline.

While the House of Representatives recently passed the USA Freedom Act, a modest reform bill said to appease both sides of this debate, the Senate rejected the bill during the early hours on Saturday. There, Republican leadership strongly opposed surveillance power revisions and vied for a clean reauthorization of the Patriotic Act, which also failed. As the calendar cliff approaches, it's likely that disputes between Senate Republicans will lead to the expiration of these provisions, including section 215, a hotly contested measure used to justify the warrantless mass collection of Americans' phone data.

If parts of the Patriot Act are allowed to lapse, it's unclear whether this outcome will favor civil libertarian and privacy reformists or national security hawks.

On the one hand, if the countdown expires, critics may vie for a more robust intelligence agency overhaul -- the kind supported by Sen. Rand Paul and elucidated in his 10-hour anti-surveillance speech on the Senate floor Wednesday. In contrast, national security statists will likely plead for immediate action to fortify the country's ever-present vulnerabilities against terror threats. White House press secretary Josh Earnest said Thursday that allowing these intelligence measures to lapse even for a short amount of time would be irresponsible.

Harley Geiger, senior counsel for the Center for Democracy and Technology, envisions a possible scenario where a big, legislative push to reinstate parts of the Patriot Act leads to an unpredictable political battle, with a coming appropriations season and the beginning of the 2016 presidential campaign complicating matters further.

While Geiger and the CDT support the USA Freedom Act, they'd rather see parts of the Patriot Act expire than be forced to support some unknown, compromised bill under pressure. "We would rather see it sunset than something that offers the veneer of reform," he told BuzzFeed News.

Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, sees uncertainty as well — though she believes the debate may shift in favor of reformists if the status quo changes to expired provisions. It would be "the first time in over a decade we haven't lived with this provision hanging over our country," she said.

In a bipartisan joint statement released Friday by House leaders who helped pass USA Freedom with a majority of 338–88, Representatives urged senators to bring their political brinksmanship to an end.

"The Senate should immediately pass this bipartisan bill instead of hastily and irresponsibly trying to scramble something together in the eleventh hour," wrote Reps. Bob Goodlatte, John Conyers, Jim Sensenbrenner, and Jerrold Nadler.

Senate Majority Leader Mitch McConnell recently proposed a clean reauthorization of the Patriot Act, and Richard Burr, chairman of the Senate Intelligence Committee, proposed a plan extending the amount of time the National Security Agency has to comply with USA Freedom. The House leaders, however, view these alternatives as unworkable.

"The short-term extensions and other proposals being discussed in the Senate don't have the support to pass in the House of Representatives," the representatives wrote.

The political play by those Republican senators who support the unsullied reauthorization of the Patriot Act has been to stall the passage of USA Freedom, forcing reformists, up against an immovable countdown, to concede to a watered-down bill. The strategy, it seems, could very well backfire.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.