The Justice Department warned lawmakers that the National Security Agency will have to begin winding down its bulk collection of Americans’ phone records by the end of the week if Congress fails to reauthorize the Patriot Act.
Faced with the expiration of the law on June 1 and uncertainty on Capitol Hill, the department circulated a memo on Wednesday that described the powers that will lapse and the actions NSA will have to take in advance to avoid legal challenges.
The House overwhelmingly passed a bill to end the bulk collection and Senate Majority Leader Mitch McConnell, R-Ky., has said the Senate will act on the issue before beginning a Memorial Day recess scheduled for week’s end.
Final congressional approval before the deadline is no certainty, though. Controversy surrounding the issue flared in the Senate when Sen. Rand Paul, a Kentucky Republican and 2016 presidential candidate, plunged into a lengthy speech declaring the Patriot Act unconstitutional and opposing renewal of the program.
“I will not let the Patriot Act, the most un-Patriotic of acts, go unchallenged,” Paul said as he commandeered the floor.
Officials said it was possible the White House contender would hold sway until midnight or later, but his office offered no word on his plans after he started speaking at 1:18 p.m. EDT. Paul’s campaign sent out a fundraising appeal while his longstanding opposition to bulk collection, a pillar of his campaign, stirred social media.
The issue has divided Republicans and Democrats, cutting across party lines and pitting civil libertarians concerned about privacy against more hawkish lawmakers fearful about losing tools to combat terrorism.
Among the other Republicans eyeing the White House, Sens. Marco Rubio of Florida and Lindsey Graham of South Carolina favor extending the program while Ted Cruz of Texas supports a version of the House bill.
Last week, the House backed the USA Freedom Act, which would replace bulk collection with a system to search the data held by telephone companies on a case-by-case basis. The vote was 338-88, and House Republican and Democratic leaders have insisted on their bill.
But McConnell and several other top Republicans prefer to simply reauthorize the post-Sept. 11 law. McConnell has agreed to allow a vote on the House bill, but has indicated that there may not be enough votes to pass it in the Senate.
If Congress fails to act, several key provisions of the law would expire, including the bulk collection; a provision allowing so-called roving wiretaps, which the FBI uses for criminals who frequently switch cellphones; and a third that makes it easier to obtain a warrant to target a “lone wolf” terror suspect who has no provable links to a terrorist organization.
The Justice Department said the NSA will have to act within days.
“After May 22, 2015, the National Security Agency will need to begin taking steps to wind down the bulk telephone metadata program in anticipation of a possible sunset in order to ensure that it does not engage in any unauthorized collection or use of the metadata,” the department said.
The department also said that if Congress allows the law to expire and then passes legislation to reauthorize it when lawmakers return to Washington the week of June 1, it would “be effective in making the authorities operative again, but may expose the government to some litigation risk in the event of legal challenge.”
The White House backs the House bill and has pressed for the Senate to approve the legislation and send it to President Barack Obama for his signature.
The House bill is the result of outrage among Republicans and Democrats after former NSA contractor Edward Snowden’s revelations about the NSA program.
Although Paul called his action a filibuster, it technically fell short of Senate rules since the bill the Senate was considering was trade, not the Patriot Act.
Fellow Republicans were not overly concerned by Paul’s move.
“I think many of us anticipated that he would probably at some point use the floor on Patriot Act, on FISA, so I guess if he’s going to, doing it now as opposed to doing it on the weekend is maybe preferable,” said Sen. John Thune, R-S.D.
Asked whether Paul’s speech met the definition of a filibuster, Thune said: “It’s going to be talking for an extended period of time. Around here I suppose that’s a filibuster.”