The Patriot Act’s Sunset Recess

The Senate entered its Memorial Day recess without passing either a Patriot Act extension or a reform bill along the lines of the Freedom Act. Amid intense congressional wrangling and paralysis, bulk collection of American telephone information conducted under the auspices of Section 215 of the Patriot Act will expire at the stroke of midnight this Sunday as the calendar rolls over to June 1, 2015. The few days between now and the sunset have significant ramifications for surveillance authority and reform.

On Tuesday, President Obama called on the Senate to work through recess to keep three provisions of the Patriot Act from expiring. As reported by Time Obama said, “You have a whole range of authorities that are also embodied in the Patriot Act that are non-controversial, that everybody agrees are necessary to keep us safe and secure. Those also are at risk of lapsing.”

With the congressional politics very much unsettled, the question becomes: What happens in the event of a lapse? This question has political and substantive dimensions. The political dimension is designed to shape the legislative environment going into the endgame. Here on Just Security, Jameel Jaffer argues that Patriot Act supporters are overstating the effects for political leverage. Politico chronicles some of the administration’s tone shifts over the last week about the stakes. On Wednesday, Attorney General Lynch warned that a sunset would cause a “serious lapse in our ability to protect the American people.” That dynamic is obviously at play as the various parties seek to shape the pressure dynamics of the sunset recess.

There will certainly be substantive effects to a sunset. Harley Geiger posted a helpful analysis on Lawfare of what a reversion to pre-Patriot Act law would look like. While the substantive stakes for this week’s endgame are dramatic, expiration of Section 215 authority is limited in scope and overall effect on government authorities.

On one hand, it has been widely reported that the administration is preparing to end the NSA’s bulk collection of Americans’ phone records, including by failing to seek renewal authority from the Federal Intelligence Surveillance Court. The Justice Department circulated a memorandum stating that: “After midnight on Sunday, May 31, 2015, the expiring authorities will be unavailable for use by the government with respect to any foreign intelligence investigation beginning after that date, until such time as legislation is enacted to reauthorize those authorities in some form.” Further, the administration has to make decisions about how to address a Patriot Act sunset against the backdrop of the Second Circuit’s decision in ACLU v. Clapper that Section 215 does not authorize the National Security Agency’s bulk collection program, which Jen Daskal did an excellent analysis of here.

On the other hand, there is no legal reason for the NSA to dismantle its bulk collection infrastructure by Monday. Section 215 has an important exception to the sunset provision. It maintains authorization for Section 215 collection for “any particular foreign intelligence investigation that began before the date on which … [Section 215] cease[s] to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect, such provisions shall continue in effect.” The Congressional Research Service analysis for the House Judiciary Committee construes that provision to mean Section 215 authorities continue beyond June 1, 2015 for “investigations that began, or any particular or potential offenses that took place, before the sunset date.”

I have two first-blush observations about this grandfather clause. First, by its terms, the exception allows pending “particular foreign intelligence investigations” to continue beyond the sunset date. Thus, the scope of an investigation becomes critical to a post-sunset universe. Geiger speculates:

The Sec. 215 sunset provision permits surveillance programs for investigations that began before the sunset to remain in place. The government could argue this allows it to continue with existing bulk collection programs to further broad investigations into terrorist groups commenced prior to the sunset – and which could endure indefinitely, regardless of the sunset, since the FBI puts no time limit on full investigations.

Second, and I would think even more controversial, is the effect of the “or” in the sunset grandfathering provision. It appears to me, by its terms, to authorize new collection activity related to investigations that have yet to be opened, as long as the offense under investigation happened prior to the sunset. Or, put another way, if two years from now the government initiates foreign intelligence investigation into offenses alleged to have happened this week, Section 215 authorities will remain available.

Notwithstanding the President’s remarks, a lapse in Section 215 will not end other authorities used to justify bulk collection programs. For example, Geiger argues that the government might rely on the FISA pen register and trap and trace statute as a basis for domestic bulk collection. Moreover, as represented by former State Department official John Napier Tye, “Section 215 is a small part of the picture and does not include the universe of collection and storage of communications by U.S. persons authorized under Executive Order 12333.”

On May 13, the House of Representatives passed the USA Freedom Act, in a 338-88 vote with six members not voting. The House bill prohibits “bulk” collection (under the Intelligence Community’s definition of that term) of records under Section 215 and replaces it with “targeted” collection (again using the IC’s definition) of telephone metadata, allowing the government to search phone companies’ records with a warrant for specific targets, along with those two hops out. (The rules within the bill differ for collection of other “tangible things.”) Additionally, it extends FBI authority to track “lone wolf” terror suspects and to use just one warrant to conduct eavesdropping on suspects who use multiple cell phones. So far, however, the Senate has not had the sixty votes it realistically needs to pass the House bill.

As one former Senate leadership aide put it to me, “fatigue and jet fumes” usually fuel a photo finish even on controversial sunsets. However, that has not been the case here. The Senate lost valuable floor time and political capital on the controversy over trade authority. In addition, it is more difficult to reach legislative compromise on surveillance reform when there are numerous presidential candidates jockeying within the Republican caucus. As recounted by Patrick Eddington and Jennifer Granick, Sen. Rand Paul’s (R-Ky.) May 20 filibuster had the effect of preventing a vote on Sen. Mitch McConnell’s (R-Ky.) clean reauthorization bill (i.e, extend Section 215 without reforms) before the House of Representatives went on recess. The House seems content to let pressure build on senators as the sunset approaches rather than engage in compromise negotiations.

McConnell has ordered senators to return this Sunday to address the issue. The real X factor is the political pressure dynamics that have developed during this Memorial Day recess period. Those dynamics will govern the political space — if any — for movement from senators’ pre-recess positions.

I consulted with former Republican and Democratic Senate leadership staff, and they agree that McConnell has limited options. Given the short timeframe, Senate action on Sunday would have to be procedurally conducted by unanimous consent. There are basically five potential outcomes: (1) a clean reauthorization that would extend Section 215 authority as is for a substantial period, (2) a clean extension that would continue Section 215 authority long enough to reach a reform compromise with the House, (3) passage of the Freedom Act as is, (4) a new reform bill, such as Sen. Dianne Feinstein’s (D-Calif.) bill or Sen. Ron Wyden’s (D-Or.) or Paul’s amendments, or (5) inaction. Because the House is in recess until after Section 215 sunset, the only option that does not lead to lapse is passage of the Freedom Act, as is.

Senator McConnell’s first choice — a clean reauthorization of the Patriot Act — looks very unlikely to have the requisite votes. Even if the clean extension found a governing majority, there is no legislative vehicle fast enough to prevent expiration. The House would have to pass the bill, too, and will not be back from recess until the provision has expired. Unlike the seven previous extensions, once there is an authorization lapse any fix will be a reenactment rather than an extension.

McConnell’s second choice would be to find more time. With more time, McConnell could still push for a clean reauthorization. However, there is a better chance that parties could forge a compromise with the House that addresses his and Sen. Richard Burr’s (R-NC), not to mention telecom companies’, concerns with the USA Freedom Act. Therefore, without the votes for a clean reauthorization, McConnell would likely push for a clean, short-term (e.g., a couple of weeks) extension with the accompanying narrative that the parties are on the cusp of a compromise. However, previous votes for short, then shorter, clean extensions have already failed.

Third, the Senate may pass the Freedom Act, which is the only legislative vehicle ready for the mirror image required by bicameralism. Pressure dynamics during this recess and sunset approach may be driving some movement toward the 60 votes needed to pass the Freedom Act on Sunday with the appropriate rules suspensions by unanimous consent. For example, Sen. Mike Lee (R-Utah) is optimistic the Freedom Act will pass the 60-vote threshold given recess pressure. However, Sen. Paul maintains that he wants a vigorous debate, with amendments, on that legislation, too.

The fourth option is an amended Freedom Act (e.g., the Wyden or Paul amendments) or a substitute reform bill (e.g., Feinstein’s bill), which would also lead to lapse because there is no ability for bicameralism with the House in session. Finally, inaction would also mean that these three provisions of the Patriot Act will lapse.

We face a vanishing horizon before sunset of Section 215 of the Patriot Act. It will be interesting to see how the Senate’s forced return from Memorial Day recess concludes Sunday’s endgame.

Update: Now we are amid this morning’s lapse in Section 215 after last night’s Senate drama. Since this post, several people have pointed out that the effect of the 2nd Circuit opinion in Clapper adds another layer of complexity to the legislative options for, and administration positions on, continued bulk collection. While a clean reauthorization or clean extension might allow traditional 215 collections, fidelity to the 2nd Circuit opinion would actually require clean extension plus express authorization of bulk collection. Such a “clean +express” requirement would make maintaining a pre-Clapper, pre-Section 215 sunset status quo even more difficult as a matter of political will, at both ends of Pennsylvania Avenue, than it is now.

In addition, they note that the Second Circuit opinion may also foreclose reliance on other authorities, such as trap and trace, that the government could invoke to continue bulk collection because of analogous statutory language to Section 215. However, there may be room for FISC, if so motivated, to reach an outcome that largely resembles previous bulk collection.

As Marty noted, Julian wrote a great explanatory piece about the stakes on Motherboard. 

About the Author(s)

Andy Wright

Senior Fellow and Founding Editor of Just Security, former Associate Counsel to the President in the White House Counsel’s Office. You can follow him on Twitter @AndyMcCanse.