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NSA surveillance reform debate to return next Congress

WASHINGTON — While Senate Republicans succeeded this week in blocking a measure that would have curtailed the National Security Agency's surveillance practice, they may have set themselves up for a bruising debate over privacy and national security when the new Congress convenes.

Tuesday's vote delayed surveillance reform until at least January, when Republicans will control both chambers.

One of the most controversial NSA programs, the bulk collection of telephone metadata, such as call records, is set to expire on June 1 of next year. That means the new Congress will have to act swiftly to bring up a new measure if members want to reauthorize parts of the program.

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The Senate on Tuesday voted 58 to 42 on a procedural motion that would have allowed a vote on whether to overhaul the program.

But that was two votes short of the needed 60 votes, effectively tabling the issue. Four Republicans joined one Democrat in opposition.

"The issue is not going away so we would have to take it up," said Senator John McCain, an Arizona Republican who voted against the bill on grounds that restricting the NSA would present a national security risk.

Under the measure, the American government would no longer store the phone records of Americans.

Phone companies would instead hold them, and federal officials could still obtain these records to trace a suspect's network. However, they would have to first obtain a court order.

Since revelations about the extent of NSA's programs first surfaced a year and a half ago, the debate has not fallen strictly on party lines, with lawmakers from both parties defending and criticizing the programs.

The top Democrat on the Senate Intelligence Committee, Dianne Feinstein, has warned about the national security risks involved with ending the program, while prominent Republicans, such as possible 2016 presidential candidate Senator Rand Paul of Kentucky, have decried the NSA as overreaching.

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The day before the vote, the White House released a statement supporting the bill.

Both Massachusetts Senators Ed Markey and Elizabeth Warren voted for the bill, even though Warren said it did not go far enough in protecting Americans's privacy.

But across the aisle, Republicans including Senate minority leader Mitch McConnell of Kentucky and Marco Rubio of Florida took to the Senate floor to argue that the bill left the country vulnerable to attacks from the group that calls itself the Islamic State.

Paul, despite his opposition to NSA surveillance, voted with most Republicans to kill the bill because it reauthorized parts of the Patriot Act, which enabled some of the existing surveillance practices.

"It's hard for me to vote to reaffirm something I object to so much," Paul said in an interview.

Michael Glennon, a professor of international law at Tufts University, said the division within the Republican Party leaves the future of reform uncertain.

He said it's likely that Congress would pass a "much less protective version," possibly similar to the bill that passed in the Republican-controlled House. The House version lost the support of civil liberties groups after amendments watered down its restrictions on the government surveillance.

"The Republicans still have not gotten their act together on this," Glennon said.

"Democrats could line up with libertarian Republicans to cause some problems for the mainstream Republican majority," Glennon said.

Tuesday's vote disappointed privacy advocates and followed a lengthy debate over national security and privacy that began in 2013 when former NSA contractor Edward Snowden leaked a trove of classified documents to the Guardian and the Washington Post that exposed many of the agency's surveillance practices.

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Snowden confirmed the government was conducting bulk collection of Americans' telephone metadata from phone companies and storing it.

Before the vote, there was optimism that the Freedom Act, introduced by Senator Patrick Leahy, the Vermont Democrat, could gain enough bipartisan support to reach the floor. As Markey noted before the vote, few bills are endorsed by both the American Civil Liberties Union and the National Rifle Association.

"It's a disappointment that the Senate failed to pass legislation that ends the bulk collection of American's private telephone and Internet records," Markey said.

Looking ahead, privacy rights groups such as the American Civil Liberties Union and the Electronic Frontier Foundation say they have not given up the fight. Neema Singh Guliani, an ACLU analyst, said the pressure the next Congress will face with the June 1 deadline will force lawmakers to address this issue.

"One way or another Congress is going to have to deal with this problem," she said.


Cat Zakrzewski can be reached at cat.zakrzewski@globe.com. Follow her on Twitter @Cat_Zakrzewski.