Everything you need to know about the Patriot Act debate

September 01, 2024

Washington CNN —

Two years after Edward Snowden exposed the National Security Agency’s secret collection of the data of millions of Americans’ private communications, the bulk of those programs remain intact.

But the key section of the Patriot Act that the NSA used to authorize that program is set to expire on June 1.

Early Saturday morning, the Senate failed to pass both a two-month extension of the current program, as well as a House alternative that sought to keep many of the NSA’s surveillance abilities intact. With the Senate set to take a week-long recess, Senate Majority Leader Mitch McConnell said the chamber will meet again on Sunday, May 31, to consider ways that would not let the program expire.

As the debate roils, get up to speed on NSA surveillance, how the Patriot Act authorized it and why Congress may – or may not – reform the program.

What is the Patriot Act?

The law goes back to the 9/11 terrorist attacks and embodies the swift reaction of the executive and legislative branches in the wake of the deadliest terrorist strike on American soil.

Within weeks of the attacks, Congress passed and President George W. Bush signed the bill into law, giving law enforcement and intelligence authorities unprecedented domestic authority – and the tools to wield that authority – to thwart plots against the United States.

“Surveillance of communications is another essential tool to pursue and stop terrorists,” Bush said at the law’s signing ceremony in Oct. 2001. “The existing law was written in the era of rotary telephones. This new law that I sign today will allow surveillance of all communications used by terrorists, including emails, the Internet, and cell phones.”

But it would end up doing much more – more, even, than the law’s major supporters and its primary architect on Capitol Hill, Wisconsin Republican Rep. Jim Sensenbrenner, ever imagined possible.

So that part about cell phones. That’s how the NSA started collecting phone records on millions of Americans?

Yes, but the Patriot Act wasn’t actually used for the justification for bulk metadata collection until 2006.

That practice began secretly in 2001 after Bush used his executive authority to give the NSA the green light to begin sweeping phone and Internet records after 9/11.

The Bush administration would eventually use the Patriot Act to justify its program – enshrining it in law.

Hold up. What the heck is this metadata, anyway?

Metadata is all the information surrounding a call, including the caller’s number, the receiver’s number, the time and location of the call, and how long it lasted – basically, everything except for the audio of the call itself. And the NSA collects the metadata of millions of Americans without those citizens’ knowledge and without a warrant specifically targeting individuals suspected of wrongdoing.

OK, but how much can the NSA actually learn without listening in to the call?

The NSA can actually piece together quite a bit about a person by analyzing phone metadata — information that a surveillance target’s family might not even know.

Repeated calls to a cardiologist could suggest a heart condition. Repeated late night calls between two employees could suggest a romantic relationship.

“They can know, for example, whether an American called a psychiatrist three times in 36 hours, twice after midnight. That is a lot private information,” explained Sen. Ron Wyden, D-Oregon, a leading supporter of NSA reforms.

And while NSA agents likely aren’t spending their days poring over the metadata of Americans who aren’t suspected of any terrorist activity, the agency does store the data for five years and retains easy access to the trove of information.

So what in the Patriot Act authorizes the NSA to rake in that information?

The government can petition the FISA court – a secret court spawned out of the 1978 Foreign Intelligence Surveillance Act – for a warrant to collect “any tangible things” to investigate terrorism or foreign spies.

READ: Leading the secret FISA court: Q&A with Judge Reggie Walton

If the government can credibly show that to the court’s 11 judges, it gets a secret warrant that can force companies, such as Verizon, to hand over private information. And the recipient of the warrant is barred from discussing the warrant with anyone, due to national security concerns.

The Patriot Act stresses that the government can only request a warrant to obtain information that is “relevant to an ongoing investigation against international terrorism.”

How is the data of millions of Americans “relevant” to terrorism investigations?

The Bush administration argued in 2006 that the metadata analysis program could only be successful if the government could collect and store the data of millions of Americans, even though it conceded “the vast majority of (data collected) will not be terrorist-related.”

“Although admittedly a substantial portion of the telephony metadata that is collected would not relate to operatives of (redacted), the intelligence tool that the government hopes to use to find (redacted) communications – metadata analysis – requires collecting and storing large volumes of the metadata to enable later analysis. All of the metadata collected is thus relevant, because the success of this investigative tool depends on bulk collection,” the administration argued.

That argument served as the justification for subsequent FISA court decisions approving warrants to collect customer data from various phone companies – warrants that need to be renewed every 60 or 90 days.

READ: Rand Paul seizes political moment with NSA protest

But now Section 215 of the Patriot Act could be going away? And this program would change?

That’s right. But lawmakers who want changes to the program still have a tough slog ahead of them.

Sensenbrenner, the lead author of the Patriot Act, was quick to condemn the FISA court’s interpretation of the law once Snowden revealed the extent of the dragnet surveillance, calling the practice “based on a blatant misreading of the law.”

He and Sen. Patrick Leahy, D-Vermont, have since led the charge to reform the Patriot Act and their efforts have gained steam in recent months, with the USA Freedom Act overwhelmingly passing the House earlier this month in a 338-88 vote.

The reform bill would keep the government from collecting telephone metadata of millions of Americans, instead requiring the NSA to get a warrant from the FISA court to collect data on a specific individual from telecommunications companies.

But the law is facing stiff opposition in the Senate from some of that chamber’s most powerful Republicans, including Senate Majority Leader Mitch McConnell, R-Kentucky, and the chairman of the Senate Intelligence Committee, Sen. Richard Burr of North Carolina, who want to reauthorize the Patriot Act for five years without any reforms.

And if the Senate can’t reach an agreement to extend the Patriot Act in some way, chunks of the law would sunset on June 1.

If the Senate doesn’t get its act together, what happens?

Section 215, which authorizes the bulk metadata collection program, would sunset.

But two other sections of the Patriot Act would also expire: a so-called “lone wolf” provision and another section that allows roving wiretaps.

The first allows law enforcement to use the national security apparatus to go after suspected terrorists who may not be affiliated with a terrorist group, but share terrorist ideology and aims. That’s a particular concern for law enforcement officials today as terrorist groups like ISIS are using social media to inspire individuals to carry out attacks in the U.S. and Europe.

The FBI would also lose the ability to apply for new roving wiretaps to pursue suspected terrorists, a common procedure used in other criminal investigations that allows officials to wiretap additional phones linked to a suspect without requesting a new warrant.

Former FBI Assistant Director Tom Fuentes, a CNN analyst, said losing that authority would be a “severe” blow to counterterrorism efforts, keeping the FBI from collecting the information it needs in a timely manner.

But counterterrorism officials already conducting investigations wouldn’t be completely hamstrung. A provision in the Patriot Act would allow officials to use these tools in investigations that were started before the June 1 sunset date.

Why are some lawmakers so opposed to reforming the Patriot Act?

For opponents of reform, it’s all about national security.

They cite the growing terror threats the U.S. is facing, as ISIS continues to grow in Syria and Iraq and expands its reach online, inspiring attacks in Europe and the U.S.

To throw away a key tool at a time of such heightened concern would be foolish, opponents say.

“For somebody to just say we’re willing to let the Patriot Act expire is irresponsible,” Republican Arizona Sen. John McCain, chairman of the Armed Services Committee, told CNN.

McCain and others argue that the U.S. could have prevented 9/11 if the NSA programs had been in place before the terror attacks.

And fellow Republican Sen. Lindsey Graham of South Carolina insisted that the NSA programs authorized under the Patriot Act are “still our best bet to prevent another 9/11.”

“It’s one thing to reform the Patriot Act,” Graham said. “It’s another thing to gut it or weaken it.”

The Republican opponents of reform are toeing the line set out by Burr, the chairman of the Senate intelligence committee. Several Republican lawmakers – including Graham and Sen. Thom Tillis of North Carolina – cited Burr as their ideological guide on the Patriot Act and NSA surveillance.

“When Richard Burr tells me it goes too far, I think about that,” Graham told CNN. “I trust his judgment.”

Terrorism is deadly serious. Why do some lawmakers want us to restrict any of our intelligence-gathering capabilities?

Reformers insist their opponents are fear-mongering when there’s actually little to fear from reforming domestic surveillance.

The government hasn’t been able to provide any examples where the NSA’s bulk data collection played a key role in thwarting a terror plot.

And multiple reviews of the program by groups and individuals with access to classified information have concluded the program isn’t as much of a boon to national security as the staunchest defenders of the program suggest.

A presidential review group convened to review NSA surveillance in the wake of the Snowden revelations concluded “the information contributed to terrorist investigations by the use of Section 215 telephony meta-data was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional Section 215 orders.”

Put another way, the NSA doesn’t need to pull telephone metadata on millions of Americans to protect U.S. national security – it should just petition the FISA court for access to data of suspected terrorists.

The Privacy and Civil Liberties Oversight Board, an independent agency within the executive branch, also couldn’t find “a single instance involving a threat to the U.S. in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.”

Richard Clarke, a former senior White House counterterrorism adviser to Republican and Democratic presidents who served on Obama’s NSA review group, said “there’s no way that you can claim that there’s a single terrorist act that was prevented because of the telephony metadata collection program.”

“There are always going to be politicians who take positions that are not fact-based but are based more on emotion and political positioning,” Clarke said. “There are always going to be politicians who are going to position themselves as more opposed to terrorism than anybody else. But their positions are not analytically derived or fact-based.”

How are supporters of reform pushing back against national security concerns?

Let’s leave it to their own words. Here are several pro-reform lawmakers who sat down for interviews with CNN.

House Judiciary Committee Chairman Bob Goodlatte, R-Virginia, was one several top congressmen to meet with House Republican leadership to craft a compromise version of the USA Freedom Act that could pass the House.

“I think most Americans believe – and I certainly do – that you can have a very high level of protection of civil liberties and a very high level of national security. In fact, we believe this bill strengthens both,” he said.

He noted that the bill would strengthen some provisions of the Patriot Act, ensuring, for example, that there is no lapse in surveillance between different agencies when a potential terrorist enters the U.S. and the FBI takes over – without needing new authorization from the FISA court.

Sen. Mike Lee, the Republican from Utah who is sponsoring the USA Freedom Act in his chamber, is leaning his arguments on constitutional concerns and trust in government as he looks to sway conservatives.

“The USA Freedom Act does not propose that we abandon any and all efforts to analyze telephone data,” Lee said. “What we’re talking about here is a program that currently contemplates the collection of all data just as a routine matter and the aggregation of all that data in one database. That causes concerns for a lot of people… There’s a lot of potential for abuse.”

Reformers also point out that the FISA court is creating a body of what they call “secret law.” The USA Freedom Act would require major FISA court decisions – like the one that authorized bulk data collection – be declassified.

Former intelligence worker Edward Snowden revealed himself as the source of documents outlining a massive effort by the NSA to track cell phone calls and monitor the e-mail and Internet traffic of virtually all Americans. He says he just wanted the public to know what the government was doing. "Even if you're not doing anything wrong, you're being watched and recorded," he said. Snowden has been granted temporary asylum in Russia after initially fleeing to Hong Kong. He has been charged with three felony counts, including violations of the U.S. Espionage Act, over the leaks. THE GUARDIAN, GLENN GREENWALD AND LAURA POITRAS

Military analyst Daniel Ellsberg leaked the 7,000-page Pentagon Papers in 1971. The top-secret documents revealed that senior American leaders, including three presidents, knew the Vietnam War was an unwinnable, tragic quagmire. Further, they showed that the government had lied to Congress and the public about the progress of the war. Ellsberg surrendered to authorities and was charged as a spy. During his trial, the court learned that President Richard Nixon's administration had embarked on a campaign to discredit Ellsberg, illegally wiretapping him and breaking into his psychiatrist's office. All charges against him were dropped. Since then he has lived a relatively quiet life as a respected author and lecturer. Hulton Archive/Getty Images

Starting in 1932, the U.S. Public Health Service studied untreated syphilis in black men who thought they were getting free health care. The patients weren't told of their affliction or sufficiently treated. Peter Buxtun, who worked for the Public Health Service, relayed information about the Tuskegee syphilis experiment to a reporter in 1972, which halted the 40-year study. His testimony at congressional hearings led to an overhaul of the Health, Education and Welfare rules concerning work with human subjects. A class-action lawsuit was settled out-of-court for $10 million, with the U.S. government promising free medical care to survivors and their families. Here, participants talk with a study coordinator. CDC/National Archives

In 2005, retired deputy FBI director Mark Felt revealed himself to be the whistle-blower "Deep Throat" in the Watergate scandal. He anonymously assisted Washington Post reporters Carl Bernstein and Bob Woodward with many of their stories about the Nixon administration's cover-up after the June 1972 break-in at the Democratic National Committee headquarters. The stories sparked a congressional investigation that eventually led to President Nixon's resignation in 1974. The Post won a Pulitzer Prize for its coverage. Felt was convicted on unrelated conspiracy charges in 1980 and eventually pardoned by President Ronald Reagan before slipping into obscurity for the next quarter-century. He died in 2008 at age 95. CBS/Landov

Mordechai Vanunu, who worked as a technician at Israel's nuclear research facility, leaked information to a British newspaper and led nuclear arms analysts to conclude that Israel possessed a stockpile of nuclear weapons. Israel has neither confirmed nor denied its weapons program. An Israeli court convicted Vanunu in 1986 after Israeli intelligence agents captured him in Italy. He was sentenced to 18 years in prison. Since his release in 2004, he has been arrested on a number of occasions for violating terms of his parole. GALI TIBBON/AFP/Getty Images/File

President Ronald Reagan addresses the media in 1987, months after the disclosure of the Iran-Contra affair. A secret operation carried out by an American military officer used proceeds from weapons sales to Iran to fund the anti-communist Contras in Nicaragua and attempted to secure the release of U.S. hostages held by Iran-backed Hezbollah in Lebanon. Mehdi Hashemi, an officer of Iran's Islamic Revolutionary Guards Corps, leaked evidence of the deal to a Lebanese newspaper in 1986. Reagan's closest aides maintain he did not fully know, and only reluctantly came to accept, the circumstances of the operation. AFP/Getty Images

Tobacco industry executive Jeffrey Wigand issued a memo to his company in 1992 about his concerns regarding tobacco additives. He was fired in March 1993 and subsequently contacted by "60 Minutes" and persuaded to tell his story on CBS. He claimed that Brown & Williamson knowingly used additives that were carcinogenic and addictive and spent millions covering it up. He also testified in a landmark case in Mississippi that resulted in a $246 billion settlement from the tobacco industry. Wigand has received public recognition for his actions and continues to crusade against Big Tobacco. He was portrayed by Russell Crowe in the 1999 film "The Insider." Craig F. Walker/The Denver Post via Getty Images

For 10 years, Frederic Whitehurst complained mostly in vain about practices at the FBI's world-renowned crime lab, where he worked. His efforts eventually led to a 1997 investigation that found lab agents produced inaccurate and scientifically flawed testimony in major cases, including the Oklahoma City and World Trade Center bombings. The Justice Department recommended major reforms but also criticized Whitehurst for "overstated and incendiary" allegations. He also faced disciplinary action for refusing to cooperate with an investigation into how some of his allegations were leaked to a magazine. After a yearlong paid suspension he left the bureau in 1998 with a settlement worth more than $1.16 million. Chip Somodevilla/Getty Images

FBI whistle-blower Coleen Rowley accused the bureau of hindering efforts to investigate a suspected terrorist that could have disrupted plans for the September 11, 2001, terror attacks. In 2002 she fired off a 13-page letter to FBI Director Robert Mueller and flew to Washington to hand-deliver copies to two members of the Senate Intelligence Committee and meet with committee staffers. The letter accused the bureau of deliberately undermining requests to look into Zacarias Moussaoui, the only person convicted in the United States of playing a role in the attacks. She testified in front of Congress and the 9/11 Commission about the FBI's mishandling of information. Rowley was selected as one of Time magazine's People of the Year in 2002, along with whistle-blowers Sherron Watkins of Enron and Cynthia Cooper of WorldCom. MIKE THEILER/AFP/Getty Images/File

Sherron Watkins, a former vice president at Enron, sent an anonymous letter to founder Kenneth Lay in 2001 warning him the company had accounting irregularities. The memo eventually reached the public and she later testified before Congress about her concerns and the company's wrongdoings. More than 4,000 Enron employees lost their jobs, and many also lost their life savings, when the energy giant declared bankruptcy in 2001. Investors lost billions of dollars. An investigation in 2002 found that Enron executives reaped millions of dollars from off-the-books partnerships and violated basic rules of accounting and ethics. Many were sentenced to prison for their roles in the Enron scandal. Bill Pugliano/Getty Images/File

Cynthia Cooper and her team of auditors uncovered massive fraud at WorldCom in 2002. They found that the long-distance telephone provider had used $3.8 billion in questionable accounting entries to inflate earnings over the past five quarters. By the end of 2003, the total fraud was estimated to be $11 billion. The company filed for bankruptcy protection and five executives ended up in prison. Cooper started her own consulting firm and told her story in the book "Extraordinary Circumstances: The Journey of a Corporate Whistleblower." Wiley

In 2003, federal air marshal Robert MacLean anonymously tipped off an MSNBC reporter that because of budget concerns, the TSA was temporarily suspending missions that would require marshals to stay in hotels just days after they were briefed about a new "potential plot" to hijack U.S. airliners. The news caused an immediate uproar on Capitol Hill and the TSA retreated, withdrawing the scheduling cuts before they went into effect. MacLean was later investigated and fired for the unauthorized disclosure of "sensitive security information." John Moore/Getty Images

Joe Darby is the whistle-blower behind the Abu Ghraib prison abuse scandal in Iraq. He says he asked Army Reserve Spc. Charles Graner Jr. for photos from their travels so he could share them with family. Instead, he was given photos of prisoner abuse. Darby eventually alerted the U.S. military command, triggering an investigation and global outrage when the scandal came to light in 2004. Graner was sentenced to 10 years in prison for his part in the abuse. He was released in 2011 after serving 6½ years of his sentence. The military and members of Darby's own family ostracized him, calling him a traitor. Eventually he and his wife had to enter protective custody.

The New York Times reported in 2005 that in the months after the September 11, 2001, attacks, President George W. Bush authorized the U.S. National Security Agency to eavesdrop without a court warrant on people in the United States, including American citizens, suspected of communicating with al Qaeda members overseas. The Bush administration staunchly defended the controversial surveillance program. Russ Tice, an NSA insider, came forward as one of the anonymous sources used by the Times. He said he was concerned about alleged abuses and a lack of oversight. Here, President Bush participates in a conversation about the Patriot Act in Buffalo, New York, in April 2004. LUKE FRAZZA/AFP/Getty Images/File

Army Pfc. Bradley Manning was convicted July 30 of stealing and disseminating 750,000 pages of classified documents and videos to WikiLeaks, and the counts against him included violations of the Espionage Act. He was found guilty of 20 of the 22 charges but acquitted of the most serious charge -- aiding the enemy. Manning is set to speak in his defense when he takes the stand during the sentencing phase of his court-martial on Wednesday, August 14. He could face up to 90 years in prison if the judge imposes the maximum sentence. Mark Wilson/Getty Images

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