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May 28, 2015

Your Viewing Guide to Sunday’s Showdown Over the Patriot Act

The Senate will convene May 31, hours before the Patriot Act expires. At issue: Reforming the NSA’s surveillance capabilities.

In the wake of Sept. 11, 2001, passing the Patriot Act seemed the inarguably patriotic thing to do. Nearly 14 years later, however, the lines of patriotism are less clearly drawn. Up for reauthorization, the act is facing staunch opposition — and creating strange bedfellows — in the wake of increasing concerns over government spying on the American people.

Last week, the House, by a vote of 338-88, passed not a reauthorization of the full Patriot Act but the equally patriotic sounding USA Freedom Act, which would continue the Patriot Act’s surveillance powers but end specific practices including the NSA’s data collection program (recently deemed illegal by a federal court), roving wiretaps and so-called lone-wolf surveillance tactics. Among other things, the USA Freedom Act would move the storage of telephone data from the federal government to telecommunications companies.

Between the House and president, however, the Senate stands. With 60 votes needed, the upper chamber came up short of passing the USA Freedom Act, producing just 57 votes before heading home for Memorial Day. At issue are competing views of liberty within the Senate.

Libertarian-leaning Senator Rand Paul (R-KY) has long opposed the Patriot Act and would shed not a tear at its demise. He also believes the USA Freedom Act needs amending to ensure stronger protections for Americans against the government.

Majority Leader Mitch McConnell (R-KY), on the other hand, believes the Patriot Act’s powers are requisite to security and had pushed for reauthorization of the act at best, a temporary extension at worst. He failed on both counts. Somewhere in the middle are senators who would keep much of the act but allow certain portions of it to expire.

Now, the Senate is set to reconvene this Sunday for a rare, holiday-recess vote in advance of the Patriot Act’s midnight expiration date May 31. Due to the political dance, the Senate is faced with the option of either passing the USA Freedom Act exactly as delivered by the House or allowing all provisions of the Patriot Act to expire, as the House is not slated to reconvene until Monday, several hours after the clock strikes midnight.

The FBI, for its part, has argued that the powers granted by the Patriot Act are invaluable for fighting terrorism. FBI Director James Comey pointed particularly to roving wiretaps, pursuing lone-wolf threats and provisions that allow the FBI to get court orders to track hotel and travel records as part of terrorism investigations. Attorney General Loretta Lynch echoed Comey, opposing the expiration of “vital and uncontroversial tools we use to combat terrorism and crime.” Of course, the meaning of “uncontroversial” is quite controversial.

For his part, Barack Obama is backing the House and urging the Senate to pass the USA Freedom Act, stating, “Make sure we don’t have on midnight Sunday night this task still undone, because it’s necessary to keep the American people safe and secure.” Please note: Obama’s sentiments apply only to government surveillance and not to border security.

Meanwhile, Obama spokesman Josh Earnest reassured the American people that the White House has no Plan B should Congress fail to extend parts of the Patriot Act. This is particularly comforting given executive action would be far worse, regardless of what the Senate and House agree or disagree upon.

Although the USA Freedom Act failed to meet the 60-vote muster the first time around, its prospects may be slightly better on Sunday. According to Politico, Sen. Mark Kirk (R-IL), who voted “no” initially, has suggested he may back the bill; Sen. Mike Enzi (R-WY) missed the first vote but is being eyed as a possible “yes”; Sens. Bill Cassidy (R-LA) and John Boozman (R-AR) are also considered possible “yes” votes. And even McConnell admitted backing for the USA Freedom Act “makes it pretty challenging to extend the law as it is.”

In a world of increasing terror threats, it’s critical that the federal government fulfill its constitutional obligation to “provide for the common defense.” However, it’s up to the American people to ensure this clause does not become the next “general welfare” clause, abused beyond recognition in the name of the public good. While security is critical, liberty is essential. We would do well to remember that fully ceding the latter has never guaranteed the former.

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