Republicans put plans to reauthorise Patriot Act on hold after court ruling

Senate Republicans have conceded they may have to temporarily suspend plans for a long-term reauthorisation of the Patriot Act after a court ruling against its use by the National Security Agency dramatically turned around the prospects for surveillance reform in Washington.

Three US appeal court judges threw the existing plan – to extend the NSA’s power to collect bulk metadata from American phone records for five years – into chaos on Thursday when they ruled that it was unlawful even under the old legislation.

Now, with the relevant section of the Patriot Act due to expire at the end of the month, Republican leaders in Congress are scrambling to find a shorter-term fix to keep the programme alive as it looks likely that the court ruling will prevent them from securing the necessary votes for a full extension in the remaining six days of this legislative session.

“I hope we can [pass a clean reauthorisation] for at least a short period of time just so we can have this debate,” Senator John Cornyn, the majority whip, told reporters. “It’s an important debate and an important law, it’s protected Americans and saved lives, and so we don’t need to make this decision in haste.”

One option would be a one-month extension to get Congress past the 1 June deadline in exchange for Republicans allowing an alternative vote on the USA Freedom Act – a reform bill designed to replace NSA collection of telephone metadata with a scheme involving data retention by telephone companies instead.

But newly emboldened Democrats angrily denied rumours that they had agreed to such a deal on Thursday.

Many of those in favour of reform believe their best chance of forcing the Republican leader Mitch McConnell into allowing a vote on the Freedom Act is the prospect of him failing to pass anything and forcing the NSA to totally shutdown the controversial programme first revealed by Edward Snowden.

Such a scenario would be preferable to many privacy campaigners, such as the American Civil Liberties Union, which originally lodged Thursday’s court challenge.

But even a full reauthorisation of the Patriot Act would now require supreme court approval to be effective, argue campaigners.

“If the government wanted to continue to collect information on the same scale, the government would have to ask the supreme court to review the second circuit’s decision,” Jameel Jaffer, ACLU deputy legal director and lead counsel in the case, told the Guardian.

“Otherwise they have an appeal court ruling the forecloses the kind of collection they want to keep.”

Supporters of the NSA’s tactics were more sceptical of the ruling and insisted it did not change in any significant way the calculus of the surveillance debate on Capitol Hill.

A spokesman for McConnell’s office insisted he continued to back the Patriot Act renewal and pointed to support for its use by judges in the Foreign Intelligence Surveillance Act (Fisa) courts that were designed to deal with such questions. “All the other courts, the Fisa courts, have ruled the other way,” he said.

“I think it’s very unfortunate,” the Arizona senator John McCain, a Republican, also told the Guardian. “I’m very concerned and it’s my understanding other courts have ruled otherwise.”

McCain said he wasn’t sure if it was “ever feasible” to reauthorise a clean extension of the Patriot Act in its current form, but stressed the need to resolve the matter “as quickly as possible”.

The North Carolina senator Richard Burr, the Republican who chairs the Senate intelligence committee, strongly disputed the ruling. Burr said the ruling, in essence, stated that “every member of Congress, the White House, their legal team, the Justice Department [and] the lawyers at the NSA” did not write a programme that clearly gave them the statutory authority to carry out their surveillance methods.

“I would tell you as a member of Congress, I find that incredible. And that’s under two administrations – where their Justice Department and the NSA legal team got this wrong – I don’t think so,” Burr told reporters on Capitol Hill. He added his belief that lawmakers still had the authority to reauthorise the NSA programmes without any changes to the bulk data collection.

Lindsey Graham, the Republican senator from South Carolina and an ardent supporter of the NSA, invoked the attacks on September 11 to emphasise the importance of the surveillance programmes.

“I’ve got one goal: if you need to reform the programme, great, I just don’t want to gut it,” Graham told the Guardian. “I would continue until someone told me to stop. I believe if the programme were in operation before 9/11, we probably would have prevented 9/11.”

Graham added that he found it hard to believe lawmakers would diminish the programme, given the current national security climate, “based on a court ruling that’s not binding”.

Cornyn said the ruling struck him as “an outlier” but was more acknowledging of how it might affect the debate.

“Obviously this is going to be part of the discussions as we go through the reauthorisation of the Patriot Act, and the authorisation of this bulk data collection method,” Cornyn said, adding that there would probably not be enough time before the Patriot Act expires to reauthorise it in any permanent way.

The Connecticut senator Richard Blumenthal, a Democrat who has led the charge for Fisa reforms, said a simple extension of the present law “in effect means reauthorising for five years a statute that right now is deeply flawed”.

“It fails to protect essential rights and clearly could be improved by having an adversarial system for example, changing the makeup of the [Fisa] court, reforming the system as needs to be done,” Blumenthal told the Guardian, adding that there is bipartisan support for NSA reform. “There is a lot of receptivity to these kinds of changes that in no way involve imperilling our national security but simply better protect our constitutional rights.”