7 May 2015, US Court of Appeals, Second Circuit: ACLU v. DNI Clapper, NSA Dir. Rogers, DOD Sec. Carter, AG Lynch, FBI Dir. Comey (PDF)
MAY 8, 2015
Court Ruling on N.S.A.'s Data Collection Jolts Both Defenders and Reformers
By JONATHAN WEISMAN and JENNIFER STEINHAUER
WASHINGTON -- A federal appeals court ruling  that the National Security Agency's bulk collection of phone records is illegal has scrambled bipartisan efforts to overhaul the program,  emboldening those who say the efforts do not go far enough and undermining Senate Republican leaders who want to keep the current program in place.
Although both chambers of Congress are under Republican control, only the House has coalesced around a bipartisan effort to make substantial changes to the government's bulk data collection, while the Senate has grown more divided in light of the court's decision. Emblematic of that, the three declared Senate Republicans running for the White House have adopted different positions  on a path forward.
"The sacrifice of our personal liberty for security is and will forever be a false choice," Senator Rand Paul, Republican of Kentucky, wrote for Time magazine,  vowing to block even a short-term extension of the Patriot Act, under which phone data has been collected. "And I refuse to relinquish our constitutional rights to opportunistic and overreaching politicians."
In the face of such disarray, federal law enforcement officials appear braced to lose some of their power, at least temporarily. "I don't like losing any tool in our toolbox, but if we do, we press on," said James B. Comey, the F.B.I. director. "I hope it doesn't go away, but if it does, we press on."
The House next week is expected to overwhelmingly approve legislation, known as the USA Freedom Act,  that ends the N.S.A.'s bulk data collection program, instead allowing such data to be held by telecommunications companies, accessible only with a court order.
But backers of the program, led by Senator Mitch McConnell, Republican of Kentucky and the majority leader, and Senator Richard M. Burr, Republican of North Carolina and chairman of the Senate Intelligence Committee, remain defiant that it will not be changed. Both dismissed the court's findings.
"The idea that somehow we wrote the law in a way that didn't provide that statutory language?" Mr. Burr said. "That is a joke."
On the other side of the debate, the Senate's most ardent civil libertarians say that legislation has now been supplanted by the court's ruling.
Mr. Paul said Friday that he would press to ban the collection of phone records altogether. And Senator Ron Wyden, Democrat of Oregon, said he would filibuster efforts by Mr. McConnell to extend the government's current collection authority beyond its May 31 expiration.
Senators expect Mr. McConnell to try to get a short-term extension of the existing law, possibly as short as three weeks. But the filibuster threats of Mr. Wyden and Mr. Paul -- backed by the two authors of the overhaul legislation, Senators Mike Lee, Republican of Utah, and Patrick J. Leahy, Democrat of Vermont -- could make that strategy untenable. With their objections, each short-term extension would take up a week of the Senate's time, pushing aside other legislative matters. House leaders will also be displeased with that plan.
"I will filibuster any effort to have a short-term extension of the Patriot Act if there are not major reforms, specifically getting rid of the federal human relations database, also known as bulk phone records collection," Mr. Wyden said Friday. "I believe I can also find other members to join me in it."
Mr. Wyden pressed his point Friday on Twitter with the hashtag #EndThisDragnet.
That has left supporters of the intelligence agencies scrambling for a compromise, with few on the other side willing to talk. Senator John Cornyn of Texas, the No. 2 Republican, acknowledged the landscape had changed. "Obviously we need to factor in what the court did," he said.
Mr. McConnell remains unbowed. The majority leader will attempt to put a straight reauthorization of the Patriot Act's bulk data collection provision, known as Section 215,  on the Senate floor before the end of the month.
"The expiring provisions of FISA are ideally suited for the terrorist threats we face in 2015," Mr. McConnell said on the floor of the Senate after the court's decision was revealed, referring to the Foreign Intelligence Surveillance Act, which Section 215 bolsters. "These provisions work together to protect us from foreign terrorists abroad who use social and other media to conspire and eventually plan attacks inside the United States."
Many Democrats are hoping that the United States Court of Appeals ruling  could push opponents of change, or those who may be on the fence, into the reform camp. "I hope this will bring Democrats and Republicans together in defense of liberty," said Senator Jeff Merkley, Democrat of Oregon.
Both sides say a long-term reauthorization of the current Patriot Act cannot pass the Senate, but there is no clear alternative.
The largest blocs in both parties back the House bill, negotiated with Mr. Lee and Mr. Leahy. But another faction, led by Mr. Paul, Mr. Wyden and Mr. Merkley, has vowed to strengthen that legislation. Still another bipartisan bloc wants changes to the Patriot Act, but do not want to go as far as the House bill.
Even presidential politics has muddled the vote counting, with Mr. Paul rallying supporters behind a stronger bill; Senator Ted Cruz, Republican of Texas, backing the USA Freedom Act; and Senator Marco Rubio, Republican of Florida, backing Mr. McConnell's straight extension.
Further complicating the issue are senators -- like Ron Johnson, Republican of Wisconsin -- who voted against a procedural measure on a similar overhaul bill last year but are facing competitive re-elections next year. Mr. Johnson is likely to face former Senator Russ Feingold, a Democrat, the only senator to oppose the Patriot Act when it passed  in the months after the Sept. 11, 2001, attacks.
Republicans senators who voted for changes last year when they were serving in the House, such as Shelley Moore Capito, Republican of West Virginia, say they will stick by that position. But Senator Tom Cotton, Republican of Arkansas, who supported the bill in the House, is now working against it.
And with 10 legislative days until expiration, no one knows what will happen.
"Don't you think that the strategy has always been to get up to the deadline and maybe you can force an issue that you couldn't otherwise win on?" asked Senator Charles E. Grassley, Republican of Iowa and chairman of the Senate Judiciary Committee, whose efforts to negotiate a compromise have made little headway.
Scott Shane and Charlie Savage contributed reporting.