At 12:01 a.m. on Monday, the U.S. government may find itself with fewer tools to investigate terrorism.
That’s because a tense political standoff over expiring provisions of the Patriot Act will come to a head Sunday on the Senate floor, a week after the same body failed to reach a deal to keep those provisions from lapsing.
Round 2 will be more definitive, though. President Barack Obama and government officials are warning of serious national security consequences, while the most ardent advocates of National Security Agency reform appear prepared to call a bluff they see as little more than fear-mongering.
The post-June 1 future remains hazy as speculation abounds, but here’s what we know right now.
What counterterrorism tools would the U.S. lose if the Senate doesn’t act before midnight on Sunday?
The government would lose authorities under three Patriot Act provisions.
The biggest and most controversial is the government’s sweeping powers under Section 215 that allow the NSA to collect telephone metadata on millions of Americans and store that data for five years. That would be gone.
Law enforcement officials also wouldn’t be allowed to get a roving wiretap to track terror suspects who frequently change communications devices, like phones. Instead, they’d need to get individual warrants for each new device.
And third, the government would lose a legal provision allowing it to use national security tools against “lone wolf” terror suspects if officials can’t find a connection to a foreign terror group like ISIS, for example. But that provision has never been used, the Justice Department confirmed.
The House overwhelmingly passed a bill, the USA Freedom Act, that would make big changes to the first, but leave the latter two provisions intact.
That bill would have the telephone companies hold Americans’ telephone metadata and require the government to get a specific warrant to seize any telephone metadata — and not on millions of people, but instead on specific individuals.
So those tools would be completely gone on June 1?
Not exactly.
FBI and NSA officials would be allowed to continue using Section 215 and the roving wiretap provision in investigations they began before the June 1 expiration date.
Any new investigations would have to go without the roving wiretaps and the ability to petition the secret FISA court — established under the Foreign Intelligence Surveillance Act to provide warrants in national security cases — for warrants to seize business records, like telephone metadata, in terrorism cases.
The NSA’s bulk metadata collection program would actually end May 31 at 8 p.m. ET to ensure the government is in compliance with the deadline by midnight in military time as well.
The process of winding down that program has been ongoing this week, and the NSA will begin cutting off its connections to telecommunications companies starting at 4 p.m. ET on Sunday.
Why is it such a long process?
Officials said the government would begin “winding down” the bulk data collection program during the week leading up to the June 1 deadline.
A U.S. administration official who spoke to CNN on the condition of anonymity in order to discuss sensitive information said “taking down the system” involves shutting off inputs between telecom companies and U.S. intelligence, “bringing down servers” and configuring “our monitoring software” to keep officials from accessing any data at telecommunication companies.
“We lock the system down so that there is no chance that data comes or data could be accessed during that time frame,” the official said.
And the Department of Justice spent the week communicating the potential changes to its authority to collect data to telecommunications companies, according to a Justice Department official and a telecommunications company official familiar with the process.
“Really it’s about just letting them know that on midnight on the 31st, they’re not going to be able to provide the legal documents and the warrant and we’re not going to give them anything,” the telecommunications company official said.
The Justice Department official pointed to “legal and technical processes that need to occur” for the program to shut down.
So could America be less safe on June 1?
Attorney General Loretta Lynch said this week the United States would face a “serious lapse” in national security.
Director of National Intelligence James Clapper said in a statement on Friday the United States “would lose entirely an important capability that helps us identify potential U.S. based associates of foreign terrorists.”
But opponents aren’t convinced. Instead, they’re determined not to let fears over national security trump civil liberties and privacy concerns.
The American Civil Liberties Union said Thursday that “efforts to short-circuit reform efforts should not be allowed to succeed.”
“Allowing the provisions of the Patriot Act to sunset wouldn’t affect the government’s ability to conduct targeted investigations or combat terrorism,” the ACLU said. “The government has numerous other tools, including administrative and grand jury subpoenas, which would enable it to gather necessary information.”
What are the facts on the expiring capabilities?
As it stands, several official review boards — including a presidential review group and a government privacy oversight board — found that the bulk metadata collection program was not essential to thwarting a single terror plot.
The Obama administration endorses the plan under the USA Freedom Act to transform that program.
The roving wiretaps provision that can be used in terrorism cases is used less than 100 times per year, but officials would be in a bind when it comes to new investigations.
Authorities could still obtain standard wiretaps on a suspected terrorists’ phone, but a new phone would require a new warrant.
Justice Department spokesman Marc Raimondi said the top secret nature of the investigations would make even that a challenge.
“When we’re chasing a terrorist or a spy, almost everything we have is highly, highly classified. Normal courts are not set up to handle that,” he said.
Officials say the rising threat of lone wolves — including those inspired by ISIS, but not ordered — raises the need to maintain that provision of the Patriot Act.
But they concede the provision hasn’t yet been used, even as the FBI has increasingly focused its efforts on lone wolves.
