Important provisions of the Patriot Act expire at midnight tonight, unless renewed by Congress. The House has passed such a bill, and the Senate has been in session today, trying to do the same. This effort was blocked, in the end, by one senator: Rand Paul. Fox News reports:
The Senate failed Sunday to strike a deal to extend the NSA’s phone surveillance program before the midnight deadline. …
The Senate attempted to either pass a House bill that would have altered the collections of the so-called phone call metadata or simply extend the program.
The 100-member chamber passed the first of two procedure hurdles, known as cloture, to proceed with the House bill. The vote was 77 to 17.
That is, of course, an overwhelming majority, far more than the 60 votes needed to overcome a filibuster. But that isn’t the problem here:
But no final action was expected before Sunday’s midnight deadline after Kentucky GOP Sen. Rand Paul served notice that he would assert his prerogatives under Senate rules to delay a final vote for several days.
Many people do not realize that the Senate’s rules empower not only a 40-vote minority, but even a single senator to block action. But this is only temporary:
Still, the program is all but certain to be revived in a matter of days, although it also looks certain to be completely overhauled under the House-passed legislation that Senate Majority Leader Mitch McConnell reluctantly blessed in an about-face Sunday evening.
I am not sure what Paul expects to gain by delaying the progress of the Patriot Act renewal by a few days. Nor do his fellow Republican senators:
Paul’s moves infuriated fellow Republicans and they exited the chamber en masse when he stood up to speak after the Senate’s vote on the House bill.
Sen. John McCain, R-Ariz. complained to reporters that Paul places “a higher priority on his fundraising and his ambitions than on the security of the nation.”
Frankly, it is hard to understand why Rand Paul asserted his right to delay the progress of the Patriot Act. Any senator could do the same on any piece of legislation; fortunately, it doesn’t often happen.
The main issue in dispute is the NSA’s collection of bulk telephone metadata, which it uses to identify connections between known or suspected terrorists and others. But there are a couple of other provisions in dispute, as well:
In addition to the bulk phone collections provision, the two lesser-known Patriot Act provisions that also lapse at midnight were one, so far unused, to helps track “lone wolf” terrorism suspects unconnected to a foreign power; the second allows the government to eavesdrop on suspects who continually discard their cellphones.
The House bill cuts back somewhat on the NSA’s ability to collect metadata. But, to the best of my knowledge, there is nothing new or particularly controversial about the NSA program. Opposition to it has generally been based on misunderstanding, often misunderstanding fostered by Rand Paul.
The Supreme Court addressed the government’s ability to obtain metadata from telephone companies in 1979 in Smith v. Maryland, a case I wrote about here. In Smith, the Court held that a telephone user does not have a reasonable expectation of privacy in the records of his telephone company. The records, after all, are the phone company’s, not the customer’s. And nothing in the metadata conveys any information about the content of the user’s telephone conversations. As far as I can see, nothing has changed since Smith v Maryland, and Paul’s constitutional arguments (on this point, anyway) are frivolous. From time to time, it has been suggested that the NSA actually records or listens in on domestic conversations without a warrant, which would raise a completely different issue. But such suggestions have never been substantiated and, in any event, are not at issue in the present legislation.
Given those facts, it is hard to see Rand Paul’s temporary blocking of Patriot Act provisions as anything other than grandstanding, intended to fool those who are not familiar with the relevant legal principles.