Surveillance: NSA Warrantless Wiretapping

McConnell Introduces 2 Month NSA Extension

By Cody M. Poplin
Friday, May 15, 2015, 4:00 PM

Likely you've heard: Senate Majority Leader Mitch McConnell (R-KY) last night introduced a bill that would reauthorize portions of the Patriot Act set to expire on June 1 for two months, giving lawmakers extra time to consider whether to approve the USA Freedom Act, a clean re-authorization of the Patriot Act's provisions, or some other formulation.

But the prospects for a short-term re-authorization seem dim. Senator John Thune (R-SD) told reporters that "[i]f it comes to letting the thing lapse or doing a short-term extension, I think the votes will be there in the House eventually." However, a bipartisan group of lawmakers on Thursday ruled out any short-term extension, raising the stakes should McConnell refuse to introduce the USA Freedom Act next week.

McConnell has yet to lay out his procedural plans for next week, but several senators expressed skepticism that they will be able to seriously consider curtailing NSA intelligence authorities, with the Senate scheduled to consider trade and transportation bills next week. Should the Senate leave Washington with reforming or reauthorizing the program, the existing NSA metadata collection program will be on a collision course with a sunset clause.

The last known FISC primary order, authorizing the executive branch to compel production of telephony metadata for a period of ninety days, was issued by Judge James Boasberg on February 26. The government believes that this order will expire on June 1, the same day as the sunset for Section 215 itself. The White House's position is that, in event that  the statute indeed lapses, the telephony metadata program will not be continued.

Yet, from a practical standpoint, the Administration will have to reckon with this possibility by no later than May 22---the last day, according to the FISC, for the Administration to ask Judge Boasberg to renew his primary order. Odds seem good that the executive branch will seek such a renewal, in advance of the June 1 drop-dead date---as doing so would permit the Administration to move forward with bulk collection for another ninety days, in the (unlikely) event that McConnell's legislation is approved.

To be sure, in the event that Section 215 does lapse on June 1, the NSA hypothetically could still seek to collect for up to ninety days, pursuant to authority granted by the FISC before the sunset. While technically legal, the political costs to the Obama administration would seem to all but eliminate such an option as a way of extending the NSA metadata collection program on a temporary basis.