The US National Security Agency faces at least a temporary lapse in its authority to collect bulk American phone records amid a standoff on Capitol Hill over renewal of the Patriot Act.

Opponents of the bulk collection of telephone records are planning further procedural attempts to block it over the next 48 hours as a late-night speaking marathon left virtually no option to renew the NSA’s current authority to do so before it expires.



The Republican majority leader, Mitch McConnell, sought to seize back the initiative in the Senate on Thursday morning after Senator Rand Paul’s dramatic 11-hour speech against NSA surveillance ate up an important chunk of remaining time on Wednesday.

McConnell has now filed motions to bring debate to a close on two vexed bills relating to the NSA: the USA Freedom Act, which seeks to curtail some of the NSA’s surveillance powers; and a short-term extension of a key section of the Patriot Act, which Senate Republican leaders claim is essential to preserving critical post-9/11 intelligence powers.

But the upcoming votes set up a dramatic finale to the two-year effort by privacy campaigners to reform the NSA after disclosures by whistleblower Edward Snowden first revealed the existence of the mass collection of telephone metadata in the Guardian.

Demonstrators hold placards and banners to protest against government surveillance in Washington DC. Photograph: Xinhua/Landov/Barcroft Media

They also all but guarantee that there will be at least a brief lapse in the purported legal authority to carry out bulk collection – unless the Senate passes the reforming USA Freedom Act.

This is because cloture motions on both bills to bring debate to a close will take two days to complete, pushing final votes back until at least Saturday.



By that time, the Senate may have passed the short-term extension to the Patriot Act powers, but members of the House of Representatives will have left Washington for its Memorial Day recess and will not be able to vote on it until they return on 1 June.

The current Patriot Act provision, known as section 215, expires on 31 May, and the White House has warned the NSA that its agents will need to start winding down their bulk collection program as soon as this Friday if they do not receive new authority.

But House leaders from both parties strongly favor the USA Freedom Act option and do not believe there are enough votes to reauthorize the Patriot Act even if it is the only option on the table.



“Our view is we have already got a compromise that works,” Tom Cole, deputy Republican whip and ally of the House speaker, John Boehner, told the Guardian. “We will be leaving today and we won’t be coming back.”

The House voted overwhelmingly in favour of the USA Freedom Act last week.

Boehner piled the pressure on Senate Republicans on Thursday, telling reporters on Capitol Hill that the House of Representatives had already done its job by passing the USA Freedom Act.

“The House has acted. It’s time for the Senate to act,” Boehner said during his weekly press conference. “I do think there’s a big disconnect in how they view our bill. That has surprised me.”

The Ohio Republican did not commit to bringing up a two-month extension of the Patriot Act, simply offering that the House would “certainly look” at what the Senate does before making a decision on how to proceed.

Senate opponents of the NSA are also determined to force McConnell to wait until Saturday.

One aide to Senator Ron Wyden, who joined Paul in Wednesday’s speaking marathon, said he would seek all procedural options to delay a vote to extend the Patriot Act, and may even take the floor for further speaking marathons.

McConnell argues that Wednesday’s speech was not technically a filibuster since Paul was unable to stop him taking back control of the floor under Senate rules when the next session resumed on Thursday.

But their ability to slow down the process as the clock ticks down to the imminent sunset of the current Patriot Act authority suggests their tactics have achieved much of what they set out to do.

“We are feeling more confident today because section 215 sunsets [lapses] come what may now,” said one Senate staffer close to the process.

“It is much harder to restore bulk collection after it has lapsed than it would have been to simply extend it,” he added.

Nevertheless, it is far from clear that there are enough Republican votes to reach cloture on the USA Freedom Act either.

Paul has opposed it for not going far enough and only three Republicans – Ted Cruz, Steve Daines and Mike Lee – joined him during Wednesday’s speaking marathon.

Even if all four voted with Democrats for the USA Freedom Act, they would need 10 more Republicans to reach the 60 votes needed for cloture.

Both cloture votes – on USA Freedom and the Patriot Act extension – could come as early as later on Thursday after an equally close-fought battle to pass trade “fast-track” legislation and few would predict which way they would now go.

House Democrats warned that the impasse in the Senate could threaten national security as well as the opportunity to strengthen protections for civil liberties.



“Without action by the Senate this week to approve the USA Freedom Act, Section 215 of the Patriot Act will expire and we will lose the opportunity to gain lasting reforms … a result benefiting neither our citizens’ privacy nor our nation’s security,” said a statement from Democrats on the intelligence committee.

“We will also lose other important capabilities provided by the expiring authorities that have nothing to do with bulk collection,” it added. “This is the least desirable outcome, especially when an acceptable alternative is available already.”

The group, led by Adam Schiff, a senior member of the pro-NSA intelligence panel, heightened the pressure on McConnell to abandon a Senate showdown over bulk collection that the House will not pass before the deadline - thereby jeopardizing McConnell’s stated ultimate objective of preserving the broader Section 215 surveillance authorities.

But civil liberties advocates were increasingly optimistic that the NSA’s sweeping surveillance capabilities had reached their final days.



“Senator Paul’s actions are evidence that pressure is mounting both inside and outside of Congress to stop NSA spying on Americans,” Neema Singh Guliani, the legislative counsel for the American Civil Liberties Union, said in an email.

“What’s remarkable is not just that Senator Paul has taken this stand against the Patriot Act, but that he has been joined by members of both parties. The tide appears to be turning, and now we are even closer to possibly achieving a sunset of the Patriot Act provisions that are set to expire.”



White House press secretary Josh Earnest laid into the Senate at his daily briefing, calling the chamber’s inaction on the bill passed by the House “irresponsible”.

Earnest warned against allowing even a temporary lapse in the NSA’s capabilities and urged Senate Republican leaders to pass the USA Freedom Act, which has the backing of Barack Obama.

Additional reporting by Spencer Ackerman in New York