Dysfunction in Congress has gotten so bad it might end up actually doing some good: the NSA’s mass surveillance powers under the Patriot Act are now on the verge of expiring after a dramatic 1am vote in the Senate on Saturday morning.

NSA bulk phone records collection to end despite USA Freedom Act fail Read more

Senators were forced to work overtime well into Memorial Day weekend thanks to a manufactured controversy by Republican Senate Majority Leader Mitch McConnell, who has known for years that the parts of the Patriot Act that allow the NSA to collect the phone records of millions of innocent people (known as Section 215) are set to expire on 1 June 2015, but decided to gin up an “emergency” and wait until the very last moment to try to extend them. He managed in the process to block the USA Freedom Act, a modest surveillance reform bill targeting the NSA that has overwhelming bipartisan support in the House, but he also failed by a large number of votes to extend the Patriot Act’s surveillance provisions for even one day.

So while Republicans managed to kill a bill that is supposed to stop the NSA’s bulk collection program, their ineptitude put the law underpinning it one step closer to extinction.

McConnell announced after the post-midnight vote that he would call the Senate back into session next Sunday evening, 31 May, to vote on both bills again – literally hours before the bulk collection authorization will expire. After his pronouncement, McConnell then hilariously reminded members that it was their duty with this vote to “act responsibly”, seemingly unaware that it’s his fault that the rest of the members were in the Senate chambers at 1am making panicked decisions in the first place.

USA Freedom Act fails as senators reject bill to scrap NSA bulk collection Read more

It’s mind boggling that passing the USA Freedom Act instead of reauthorizing the bulk collections provisions of the Patriot Act is a debate at all: the milquetoast reform bill that 42 Senators scuttled last night is so mild and uncontroversial that even the NSA is perfectly happy to live with it. Those Senators would apparently rather attempt to re-authorize a surveillance program under a law that was ruled illegal by an appeals court – so any reauthorization would likely fail to allow the NSA to continue collecting Americans’ phone records anyway. And, since the Obama Administration confirmed today that it hadn’t even applied to the Foreign Intelligence Surveillance (Fisa) Court for an extension to continue the phone records program, the NSA will stop collecting millions of innocent Americans phone records on 1 June regardless of what the Senate does.

Beyond the massive privacy concerns with this supposedly “critical” law that McConnell and his supporters are desperate to save, it’s also been completely useless at stopping terrorism. On Thursday before the vote, the Justice Department’s Inspector General released a long-delayed comprehensive report on those very provisions of the Patriot Act, concluding that FBI agents could not “identify any major case developments that resulted from use of the records obtained in response to Section 215 orders.” The report, by the way, directly contradicted new Attorney General Loretta Lynch’s comments (also on Thursday) that the Patriot Act’s bulk collection provisions have “proven very important in cases that we have built in the past.”

So remember this week, when you hear Administration officials or Senators or pundits make dire predictions about how the expiration of Section 215 will spell disaster for the country: they’re probably lying. If anything, the coming deadline means that the currently watered-down privacy protections of the USA Freedom Act should get much stronger, as Republican Senator Rand Paul has been imploring all week. There are many ways of strengthening the reform bill that would make absolutely sure that it ends bulk collection of any kind and that the NSA can never reinterpret public laws in secret ever again.

The thing is that, no matter what Mitch McConnell and his intelligence community friends try to pull in the next week, the bulk collection of Americans’ records authorized by Section 215 is coming to an end – at least temporarily. So as soon as the clock strikes midnight next Sunday, even if the Senate fails to pass the USA Freedom Act again, the status quo will still change. The question the Senate must answer with legislation will no longer be whether to continue a mass surveillance program that already exists: it will be whether to create a new mass spying program.

And considering that Congress can barely agree to vote for the names of post offices anymore, the chance of them returning to the NSA the powers that they know a vast majorities of the American public hate is about as good as it was that McConnell would find consensus Friday night: virtually none.