Is the PATRIOT Act Dead? Not Even Close

Misleading Press Coverage on Senate Votes Omits Key Facts

I’ll begin with some of the headlines from the stories on the Senate’s early Saturday morning meltdown on reauthorizing provisions of the PATRIOT Act:

Senate blocks Patriot Act extension; NSA phone-records collection to expire

Failed Senate Votes Mean Gap in NSA Phone Tap Program

NSA bulk phone records collection to end despite USA Freedom Act failure

No, no and no — because this drama isn’t over, despite the USA Freedom Act failing to clear a procedural hurdle by a mere three votes.

Senate procedures allow Majority Leader Mitch McConnell to offer a motion to bring USA Freedom Act back up for another procedural vote. As he’s told Senators to be back in Washington the day the three PATRIOT Act provisions in question are set to expire, it seems fairly certain he intends to try. He faces two obstacles.

The first is finding at least three more Senators willing to vote for “cloture” , which is a procedural motion to end debate on the bill. What the votes in the Senate on Saturday should’ve told everyone is this: there is no chance of any kind of straight-up PATRIOT Act reauthorization passing, not just in the House but in the Senate itself. That means that for all intents and purposes, the only options available to the Senate are 1) let Sec. 215 authorities expire or 2) allow the USA Freedom Act another chance on the Senate floor.

My back-of-the-envelope calculation is that at least three and possibly as many as 10 Senators who voted against cloture on USA Freedom Act will, if presented with a second opportunity, likely allow the bill to move forward. So that’s a hurdle McConnell seems able to clear.

But he may not get the chance because of the other obstacle: Senators who believe the USA Freedom Act doesn’t go nearly far enough.

At the top of that list would be Rand Paul of Kentucky, followed closely by Ron Wyden of Oregon and very likely Martin Heinrich of New Mexico. If any of them object to a motion to allow USA Freedom Act to come to the floor for another cloture vote on May 31, then it very well could mean the end of the illegal and ineffective Sec. 215 program.

But on the Senate floor early Saturday morning during the debate, Paul made clear that he had come down from his request for six of his amendments to get votes to just two, at a 51 vote threshold. McConnell refused to take the deal, and that was his true mistake, because it’s not at all clear that Paul would’ve got the 51 votes he needed. And even if he had, that would’ve had the effect of taking a very weak reform bill and, in the view of many in the civil liberties community, made it a much better bill.

The catch is that Wyden too wants to offer amendments, one of which would preclude NSA from conducting “back door” searches of Americans communications collected and stored under Sec. 702 of the FISA Amendments Act. And if McConnell accommodates Paul and Wyden on amendments, he would almost certainly have to do the same for Senate Surveillance State fans like Senate Intelligence Committee chairman Richard Burr of North Carolina and freshman Senator Tom Cotton of Arkansas.

Opening up USA Freedom Act for amendment broadly could make the Senate’s May 23 PATRIOT Act follies look tame by comparison. But for once on a surveillance authority debate, it might actually look something like democracy at work — where the policy choices are made in the open by people who have to answer to voters, rather than in secret by unelected bureaucrats who often behave as if they are accountable to no one. Like the FBI.

So contrary to some press reporting that “Mitch McConnell may still be majority leader but for now, it’s Rand Paul’s Senate”, McConnell still has a chance to accept political reality, convince just three more of his colleagues to do the same, and regain some measure of control over the body he putatively leads. He also has to accept the fact that the American public rejects the notion that they are a potential enemy who must be spied on endlessly by their own government — a point Paul, Wyden and Heinrich are driving home on a bipartisan basis.

And whatever the outcome of the Sec. 215 debate, the fact remains that absent a change in law, the 150 other provisions of the PATRIOT Act are not now and will never be up for reconsideration — including provisions that allow “sneak and peak” searches and provide for a radically broad interpretation of what constitutes “material support” to a terrorist organization, among others. The PATRIOT Act will be far from dead when this current debate ends, a fact none of us should forget, much less be content to accept.