Critical NSA Reform Bill Fails in the Senate

The U.S. Capitol Building is reflected in the Senate reflecting pool while undergoing repairs in Washington, D.C., U.S., on Wednesday, Nov. 5, 2014. Andrew Harrer/Bloomberg via Getty Images

Senate lawmakers working to reform NSA surveillance were struck a fatal blow tonight when a critical bill that would have curbed some of the spy agency’s controversial activity failed to obtain enough votes.

In one of their last acts before the year sunsets, pro-reform Senators attempted to advance the USA FREEDOM Act but failed by just two votes to obtain the 60 votes needed to move the bill forward.

Democrats, who maintain the majority in the Senate, were eager to push the bill through during the end-of-year session before Republicans assume the majority position next year. Civil liberties groups, which support reforms currently laid out in the bill, considered tonight’s vote the last-gasp chance for the bill to move forward before some of its staunchest supporters hand over seats lost in the November elections.

The bill would have put an end to the government’s controversial bulk collection of phone records from U.S. telecoms—a program first uncovered by USA Today in 2006 but re-exposed in 2013 in leaks by NSA whistleblower Edward Snowden. The bill would instead have kept records in the hands of telecoms and forced the NSA to obtain court orders from the Foreign Intelligence Surveillance Court to gain access to them. It would also have required the agency to use specific search terms to narrow its access to only relevant records.

Additionally, the bill would have allowed service providers more transparency in disclosing to the public the number and types of requests they receive from the government for customer data. The government in turn would have had to be more transparent about the number of Americans caught up in its data searches. The NSA has said in the past that it has no idea how many Americans are caught up in national security collection efforts that target foreign suspects.

Senator Patrick Leahy (D-Vt.) J. Scott Applewhite/AP

A bipartisan coalition urged lawmakers to move the bill forward. Senator Patrick Leahy (D – Vermont), the bill’s main sponsor, led a vigorous effort to obtain enough votes to get the bill onto the Senate floor but lost with 58 yes votes and 42 no votes, two votes shy of the 60 yes votes needed. A favorable vote today would have allowed the bill to advance to the next stage—that is, move to the Senate floor where lawmakers could have proposed changes to it.

But lawmakers unhappy with the bill feared letting it get even that far, saying the USA FREEDOM Act would handicap the NSA and allow terrorist groups to prosper. Former NSA and CIA Director Gen. Michael Hayden and former U.S. Attorney General Michael Mukasey called it the kind of “NSA Reform That Only ISIS Could Love,” referring to the militant group known as the Islamic State of Iraq and Syria that has terrorized parts of the Middle East.

The White House, however, supported the bill, saying it balanced the need for surveillance while still preserving the constitutional protections of Americans. Attorney General Eric Holder and even the Director of National Intelligence James Clapper both have expressed support for it.

The bulk-records collection program still faces problems next summer when Section 215 of the USA Patriot Act are scheduled to expire. The government has used Section 215 to authorize collection of the records, and reformers in the Senate and House have vowed to fight re-authorization of this and other sections of the Act next year and let them expire. They had hoped, however, in passing USA FREEDOM Act, to put an end to some of those powers now.

Senator Dianne Feinstein (D – California), a supporter of the bulk-records collection program, initially opposed the USA FREEDOM Act but changed her mind out of fear that if the Senate didn’t pass this bill allowing a revised version of collection program to continue the program was at risk of being cancelled entirely next year if Section 215 is allowed to expire next year. She viewed the compromise offered under the USA FREEDOM Act preferable to the alternative.

“I do not want to end the program,” she told her fellow lawmakers today. “I’m prepared to make the compromise, which is that the metadata will be kept by the telecoms.”