Senate Majority Leader Chuck Schumer (DN.Y.) has less than 24 hours to reauthorize the Foreign Intelligence Surveillance Act (FISA) warrantless surveillance program before it expires Friday at 11:59 p.m., and he has a tough road ahead of him to meet the deadline .
Schumer must bypass a coalition of Republican and Democratic senators who want to make dramatic changes to the House-passed bill, which would almost certainly result in intelligence and law enforcement agencies losing key authorities for a few days.
On the Republican side of the aisle, Sens. Rand Paulus (Ky.), Mike Lee (Utah) and Josh Hawley (Mo.) are pushing for changes to the bill.
They want to add provisions to prevent intelligence and law enforcement agencies from purchasing U.S. data from third parties and to prohibit FISA from allowing surveillance or searches of Americans.
On the Democratic side, two of Schumer’s top deputies, Senate Finance Committee Chairman Ron Wyden (Ore.) and the Democratic Senate whip Dick Durbin (Ill.) aim to rewrite the core elements of the bill.
Wyden plans to offer an amendment to limit the language, which would expand the scope of companies required to comply with data requests, while Durbin has an amendment to require warrants to review the information of Americans swept up in the surveillance of foreign targets.
But Senate leaders warn that making changes to the bill will miss the deadline, causing the intelligence community’s surveillance programs to “vanish into thin air.”
“There are also things that I would like to change in the House of Representatives bill. But the reality is that we are running out of time. The choice is ours – and as we think about the amendments, this is the case – approve this bill or allow 702. [to] sunset,” said the chairman of the Senate Intelligence Committee Mark Warner (D-Va.), referring to the surveillance authority authorized under Section 702 of FISA.
Warner warned that amending the bill and sending it back to the House of Representatives would provoke “a sunset” in authority, which he called an “unspeakable outcome that the president’s own Intelligence Advisory Council says will go down in history as one of the worst intelligence failures of our time. time.”
Schumer urged his colleagues not to delay the bill, pointing to the looming deadline.
“We obviously don’t have much time left before FISA authorities expire,” he warned.
The Senate voted 67-37 to advance the House-passed FISA reauthorization bill Thursday, but senators must take at least two more procedural votes to trigger a vote on final passage, something that could take days unless all 100 senators agree. accelerate the process.
Paul says he will push the debate past Friday’s deadline unless he is given enough time to debate and vote on changes to the bill.
“If all else fails, I think we can live under the Constitution for maybe a day, maybe two days. I think we would survive,” he said, arguing that the country got along well before Congress passed FISA in 1978.
He said that if FISA expires, intelligence and law enforcement agencies could go to regular courts to enforce arrest warrants to surveil Americans and would not need special permission to spy on foreigners.
“Article III courts are pretty lenient. If you go to a judge in D.C. and say, ‘We think this guy has a bunch of meth,’ they’re going to bug you,” Paul said of regular criminal courts.
Paul said Thursday afternoon that he and his allies plan to introduce six to 10 amendments to change the bill.
“They should all get votes. There should be enough time to debate it,” he said.
A Republican senator said at least three of those amendments have a chance of passage, which would require the Senate to send it back to the House of Representatives before heading to President Biden’s desk for his signature.
One amendment that has a good chance of passage is sponsored by Durbin, the second-largest Democratic leader in the Senate, and Sen. Kevin Cramer (RN.D.).
The amendment would require the government to obtain court approval before accessing the contents of the private communications of Americans swept up in surveillance of foreigners authorized by Section 702 of FISA. It is similar to the amendment sponsored by Rep. Andy Biggs (R-Ariz.), which narrowly failed by a vote of 212-212.
A Senate Democratic aide said the close vote in the House shows amendments would have a chance of passing in the Senate. However, the source warned that the stakes are now higher as any amendments passed at this late stage would mean the bill would remain in Congress beyond Friday’s deadline.
Wyden, a senior member of the Intelligence Committee, wants to amend the FISA bill to remove language from House Intelligence Committee Chairman Mike Turner (R-Ohio), which he said would limit the number of companies that would be forced to comply regulations would increase dramatically. monitoring requests.
“If you have access to communications now, the government can force you to help it spy. That means anyone with access to a server, a wire, a cable box, a Wi-Fi router, a phone or computer,” Wyden warned on the Senate floor.
That claim prompted a strong rebuttal from Warner, the chairman of the Senate Intelligence Committee.
“It’s not an extension of FISA,” he insisted. “It’s a complete mischaracterization.”
He said when Section 702 was first created 15 years ago, cloud-based data storage and other new technologies did not exist.
“The telecom world has changed since 2008, and things like cloud in 2008 were a thing [that] it would rain on you. Data centers are items that did not exist,” he said. “So you need to update your definitions.”
Tensions are rising in the Senate as lawmakers stumble close to the deadline without a plan on how to handle the demand for amendments.
Republican Senate Whip John Thune (SD) warned that Schumer will have to agree to vote on amendments to meet the deadline.
Lee, who along with Paul, Wyden and other senators are demanding changes to the bill, argued Thursday that no real authority would lapse if Congress fails to reauthorize FISA by the weekend.
“They are lying when they say FISA 702 collection will end abruptly at midnight tomorrow. That will not happen,” he stressed on the Senate floor, noting that Congress included language in the latest reauthorization bill that would allow the program to continue as long as it has certification from the Foreign Intelligence Surveillance Court.
But other senators dispute that theory, including Warner and Sen. John Cornyn (R-Texas), a member of the intelligence panel.
“That is not true. I know there is a legal theory that because the Foreign Intelligence Surveillance Court has certified the program for a year that we can somehow continue to use these tools, but I don’t believe that to be true is,” Cornyn said. “That certification was in anticipation that the [congressional] the authorization would be reinstated, and there is no other authority.”
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