It’s easy to get confused by the swirling politics surrounding the Patriot Act, the NSA, and the USA Freedom Act. Earlier in May, the White House gave its stamp of approval to the USA Freedom Act, saying that it “strikes an appropriate balance between significant reform and preservation of important national security tools.” Here’s how Joan McCarter described things at Daily Kos on May 12th:

With the White House now supporting the House bill, there’s really no way McConnell is going to get his way in the end, even if he can somehow manage to cobble together a filibuster-proof majority of senators on his side. That’s exceedingly doubtful, as is the possibility that the House would even consider passing a “clean” bill. McConnell’s ploy has been to run the clock out on this expiring provision—it ends at the end of the month. By putting it off until the last minute, he’s apparently counting on panic setting in and Congress doing the easiest thing in the name of national security—extending the program. As of now, he’s still pushing for an extension until 2021. Which is an impossible thing.

Unless Joan McCarter is a rocket scientist (and I don’t think that she is), what happened last night wasn’t at all hard to predict. Things transpired exactly how McCarter said that they would. McConnell failed to get cloture to defeat a filibuster and then resorted to desperate pleas which were summarily rejected.

McConnell suggested [doing a temporary extension and] putting off the debate until June 5, earning objection from Sen. Ron Wyden of Oregon. Then McConnell tried for June 3, to the objection of Sen. Martin Heinrich of New Mexico. Finally the majority leader asked for an extension through June 2. [Sen. Rand] Paul objected again, and the Senate took another short break…

…After meetings on the Senate floor, McConnell announced the Senate would try again on May 31, hours before the program is set to expire. Senators will have “one more opportunity to act responsibly,” said a visibly flustered McConnell.

McCarter was also prescient about how the House would react.

But even if the Senate reconvenes on Sunday and manages to pass legislation pushing back the expiration, members of the House have promised to not let anything through but the Freedom Act, a measure that passed the lower chamber overwhelmingly last week.

The House won’t reconvene from its current Memorial Day recess until the evening of June 1—after the provisions will expire. Rep. Justin Amash, a Michigan Republican and one of Congress’s most strident critics of the Patriot Act, vowed late Friday to block any unanimous-consent deal that would allow the House to agree to any clean short-term extension that the Senate might pass.

I won’t say that the White House is thrilled with the bill that the House of Representatives passed, but they can live with it. McConnell is not going to overcome the united force of the Obama administration, the House Republican leadership, and the junior senator from Kentucky. And, as McCarter also explained, there isn’t really any coherence to McConnell’s position here.

First of all, a federal appeals court has declared the bulk collection of phone data under Section 215 illegal—the law does not allow for the program that McConnell insists must continue to exist. If the law is unchanged, the administration will be forced to either end the program itself or appeal the ruling of this court to the Supreme Court. Since the White House is behind the reform language, the likelihood of it appealing to the Supreme Court is tiny. If the government doesn’t stop the surveillance, the federal appeals court can intervene with an injunction and tell it to stop. It didn’t enjoin the program with this ruling specifically because the program is slated to be dealt with this month by Congress, but if Congress doesn’t act the court will. Given it’s current shaky legal status, it’s likely that telecommunications companies will stop participating. McConnell is on a fool’s mission if what he wants to do is keep the NSA unfettered in collection of our phone records. There’s almost no path to continuing the program unchanged.

The NSA is going to let the Section 215 program expire unilaterally in any case, so I guess I just find what’s going in the Senate to be pretty confusing. I mean, I can understand what McConnell is saying:

“We need to recognize that terrorist tactics and the nature of the threat have changed, and that at a moment of elevated threat it would be a mistake to take from our intelligence community any of the valuable tolls needed to build a complete picture of terrorist networks,” McConnell said on the Senate floor.

But I can’t understand what he expects to happen.

[Cross-posted at Progress Pond]

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Martin Longman is the web editor for the Washington Monthly. See all his writing at