White House urging Senate passage of surveillance act
WASHINGTON -- Top Obama administration officials warned the nation could face heightened risks of a terrorist attack if the Senate does not approve compromise legislation by midnight Sunday that would reauthorize many post-9/11 anti-terrorism surveillance authorities and shift the bulk collection of telephone metadata from government servers to those of telephone companies.
"We're in uncharted waters fraught with unnecessary risks," said one senior administration official involved in terrorism investigations.
Another counterterrorism official said the Senate was "playing national security Russian Roulette" by delaying action on the pending House-passed USA Freedom Act until Sunday, mere hours before a range of counterterrorism investigative authorities expire.
If the Senate does not act, not only will the bulk collection of telephone data end but counterterrorism investigators will lose other surveillance tools: Gathering phone and internet records of suspects (Before 9/11, secret court warrants limited record searches to business, bank and hotel activity); roving wiretaps; and so-called "lone wolf" surveillance of non-U.S. suspects not linked to a known terrorist group.
The officials said the use of phone and Internet records in combination with business records is an authority used between 180-200 times a year, roving wiretaps are used less than 100 times a year and "lone wolf" surveillance has never been used since 9/11.
The officials cautioned that "lone wolf" surveillance is a tool that may rise in importance as authorities seek to thwart ISIS-inspired jihadists responding to the terror group's calls for individuals to attack American targets.
Expiration of these Patriot Act authorities would block using these tools on any new investigations launched after midnight Sunday, officials said. Legal appeals would be made to continue investigations already launched, which the officials said they were optimistic would be legally permissible.
Counterterrorism officials have begun preparing an end to bulk collection of telephone data and other surveillance powers under the Patriot Act. Most of the work is organizational at this stage, confined to drafting of memos outlining new procedures should the Patriot Act expire.
But officials said the National Security Agency, which collects and stores the telephone metadata, must begin a process to cut itself off from telephone companies sharing data under court order at 4 p.m. Sunday.
The eight-hour process involves removing NSA access to telephone company data servers and the NSA servers that currently house the data collected under order of the secret Foreign Intelligence Surveillance Court (FISC).
Officials said if the Senate approves the USA Freedom Act and President Obama signs the legislation before 8 p.m. Sunday, the process can be reversed and all meta-data collection would be unaffected. "After that, it's too late," an official said.
If the Patriot Act expires, officials said the NSA would shut down all servers used for metadata telephony collection and block all access to the stored information until Congress passed new legal authority allowing for its use. The servers would not be erased, officials said. "We lock it down," one top surveillance official said.
The officials called all of the Patriot Act surveillance authorities important "building blocks" in counterterrorism cases that allow operators in the field to see patterns of activity developing, fill in gaps in information developed by other means, share information with other nations and rule out cases that look suspicious but are not. The officials did not directly challenge the assertion by Sen. Rand Paul, R-Ky., that the surveillance authorities had not led directly to one case cracked or one attack thwarted.
"It's the wrong metric," one official said. "These are tools we are using to make links."
The House passed the USA Freedom Act by a vote of 338-88. The Senate failed to end prolonged debate on the measure May 22 on a vote of 57-42, falling three votes of the 60 necessary to invoke cloture. The Senate also defeated an effort to extend the Patriot Act until July 31 by 45-55 vote.
Officials called the USA Freedom Act "the only clear, risk-free path" to maintaining existing surveillance authorities and address criticism of government storage of bulk telephony metadata. The House bill would shift storage of the data from government servers to the telephone companies where the phone records originated. The bill allows for a six-month transition for data storage from the NSA to individual telephone companies.
A senior official familiar with NSA operations described the work required as "basic engineering" and said the NSA had a "high-level of confidence" the work could be carried out in six months.
If the Patriot Act expires, the government would have to reapply for legal authority to restart telephone metadata collection. Telephone companies provide the data now under FISC court orders and have said publicly they will not do so without such an order. Reopening the request for a court order and winning telephone company compliance is yet another variable the government wants to avoid, officials said.
If the Patriot Act expires and Congress were to subsequently send legislation authorizing these surveillance programs to Obama, it would take at least three or four days to re-start them, officials said.
In the meantime, counterterrorism operators are working in an increasingly uncertain legal atmosphere, wondering if Congress will meet the Sunday deadline allowing them to operate under current surveillance rules and procedures.
"You can't give hundreds of national security professionals two minutes to figure out the new rules," one official said. "What you're hearing from them is a plea for certainty."