Understanding Rand Paul's NSA Jujitsu

Rand Against the Machine
Senator Rand Paul of Kentucky, a Republican presidential contender, speaks at a meet-and-greet in Philadelphia on May 18, where he vowed to do “everything possible” to block renewal of the Patriot Act. Two days later, Paul was in the U.S. Senate, delivering a 10-hour speech condemning the NSA’s bulk data collection program. Alejandro A. Alvarez/The Philadelphia Inquirer/AP

It's hard to find a person who likes working on Sunday. That's especially true for senators.

And yet, on the last day of May, the Senate will be in session because it has not been able to come to an agreement on the Patriot Act, the 2001 law enacted in the wake of 9/11 and that civil libertarians have long thought represented a government grab of Americans' rights.

At issue in the Senate is the extension of a section of the act that gives the National Security Agency the authority to sweep up the data associated with the billions of phone calls that Americans make each day. It's not tapes of actual calls, but the "metadata" associated with them—who you called, how long you called, where you called from. The extension expires on June 1.

Senator Rand Paul, the libertarian-leaning Kentucky Republican, is vowing to stop the bill entirely—a threat he reiterated the day before the Senate was due to return. "Tomorrow, I will force the expiration of the NSA illegal spy program," Paul said in a statement Saturday. "I believe we must fight terrorism, and I believe we must stand strong against our enemies. But we do not need to give up who we are to defeat them. In fact, we must not."

Paul vowed to use various procedural tactics to push a vote past the midnight expiration deadline. The Senate session starts at 4 p.m. on Sunday and the White House has said that the program, which is already being dismantled in anticipation of Congress not passing an extension, will lapse beginning at 8 p.m. Both the White House and Republicans who favor the act's extension have been warning about national security implications if the program ceases to operate.

On Friday, President Barack Obama told reporters in the Oval Office: "We've only got a few days. I don't want us to be in a situation in which for a certain period of time those authorities go away, where suddenly we're dark, and heaven forbid we have a problem where we could have prevented a terrorist attack or apprehended someone who engaged in dangerous activity, but we didn't do so simply because of inaction in the Senate."

Paul's move is part of a head-spinning alignment of political forces. His stance against the act puts him on the opposing side of Senate Majority Leader Mitch McConnell, who called the Senate's rare Sunday session after being unable to overcome the opposition of Democrats and libertarian-minded Republicans who blocked renewing sections of the act and thus the spying program.

The standoff seemed to mark the end of a truce. McConnell favored Paul's opponent in the 2010 GOP Senate primary in Kentucky, but since then they've had an uneasy alliance. Paul campaigned hard for McConnell when he faced what at first seemed like a strong Democratic challenge in 2014.

The unusual political alignment puts Paul closer to Senate Democrats and House Republicans. The House has passed the U.S.A. Freedom Act, which ends the NSA's massive sweep of phone data. Instead, their legislation requires law enforcement authorities to obtain court approval to request phone records from telephone companies on a case-by-case basis. The White House supports that measure, too. And a majority of the Senate does as well. Paul doesn't like that reform measure because he believes it doesn't go far enough and he voted against it.

Making the situation tricky are internal Senate rules. In the chamber where the once rare use of various procedures requiring 60 votes has become commonplace, especially under McConnell when he was the minority leader, it's anyone's guess how this turns out. Even though the USA Freedom Act is supported by libertarian-leaning Senate Republicans, Obama and House Republicans and Senate Democrats, and even though it garnered a solid majority last week that could have sent it to the president's desk, it got jammed up by opponents using 60-vote tools to block it.

If that wasn't complicated enough, Paul's promise to slow the process even more means that the Patriot Act provisions are almost sure to expire tomorrow night—especially since the House would need to sign on to any new bill.

For his part, McConnell seems determined to stay the course. His efforts to pass a temporary extension of the current law failed last week and he has limited options other than to try again to persuade members to pass another stop-gap measure. Among McConnell's objections are that the House-passed, Obama-supported act wouldn't require the NSA to hold on to phone records.

Adding to the confusion is a recent court case out of the U.S. Circuit Court of Appeals for the Second District in New York that undercut many of the legal theories underpinning the mass surveillance program. The three-judge panel that ruled on the case didn't overturn the NSA program, but it cast doubt on its statutory foundation. "The statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here," the judges ruled. "The sheer volume of information sought is staggering."

All of this leaves Paul exactly where he's most comfortable, with the national spotlight on him and his presidential campaign, making libertarian arguments that cut across party lines and keeping the Senate in knots. It makes it worth coming to work on Sunday.