In win for privacy hawks, Senate adds more legal protections to FISA bill

The Senate on Wednesday approved more legal protections for some individuals targeted by a shadowy surveillance court.

The 77-19 vote, which will add language to a House-passed bill, marks a victory for privacy hawks who have raised red flags about the Foreign Intelligence Surveillance Act (FISA) court for years. 

But it also adds a snag to getting the bill to Trump’s desk. Because senators voted to amend the House bill, once it is passed by the Senate, which is expected to happen on Thursday, it will have to be sent back to the House to be passed for a second time. 

The proposal, from Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.), would increase the role of outside legal experts in FISA court hearings, including allowing them to weigh in on some FBI surveillance requests.

“The friend of the court provisions, amicus curiae, I’m describing provides the opportunity for the FISA court to hear from a fresh perspective, a neutral, trusted perspective, one that comes with some expertise,” Lee said from the Senate floor.

He noted that if his proposal with Leahy had been enacted during 2016, “it would have required the FISA court to appoint an amicus in the Carter Page case,” referring to the investigation into Trump’s former campaign adviser.

Leahy also appeared to rebut critics, who have warned they think the proposal will slow down the FISA process, noting that it would apply only to certain subsets of people.  

“It’s not a burden on the court. What it’s doing is empowering the court. It’s up to them. In reality, the number of cases that would have participation under our amendment would remain manageable,” Leahy said.  

The overwhelming approval of the Lee-Leahy amendment is a blow to leadership, who wanted to pass the House bill without changes. Seventeen of the 19 “no” votes were Republicans, including Senate Majority Leader Mitch McConnell (R-Ky.). Two Democrats, Sens. Joe Manchin (W.Va.) and Mark Warner (Va.), the vice chairman of the Intelligence Committee, also voted against it. 

McConnell urged the Senate to reject changes to the House bill ahead of Wednesday’s votes.  

“The current bill in its current form already strikes the correct and delicate balance. And there is certainly no guarantee that another new version of this legislation would necessarily pass the House or earn the president’s signature,” McConnell said.  

Supporters of the Lee-Leahy amendment told The Hill on Tuesday that they expected to get 60 votes, meaning the amendment would be added to the House bill.

Sen. John Thune (S.D.), the No. 2 Senate Republican, also indicated on Wednesday morning that Lee and Leahy would likely succeed.  

“That’s a good possibility. The Lee amendment has been modified extensively and incorporates a lot of changes that a lot of members had concerns about,” Thune said, when asked if he thought changes would be made to the House bill.  

“I think the leader’s position is that it’s much simpler to pick up the House passed bill, pass it, send it to the president,” Thune added, asked if leadership would support it. “But, we all kind of know — you’ve got to be able to count. And we also realize there’s a lot of support for the Lee amendment.” 

Outside groups on both sides of the aisle praised the Senate for agreeing to include the Lee-Leahy amendment in the House bill. 

American Civil Liberties Union senior legislative counsel Neema Singh Guliani said in a statement that the amendment wouldn’t “address all of the surveillance abuses” but that it was a “critical victory towards reforming our broken intelligence surveillance system.” 

Jason Pye, the vice president of legislative affairs of the GOP-aligned FreedomWorks, said the amendment would result in Americans “more often [having] someone advocating for their rights during these secret proceedings, and the likelihood is greatly decreased that intelligence agencies can abuse their surveillance power and get away with it.”

The House-passed bill reauthorizes without changes two expired provisions of the USA Freedom Act: One dealing with “roving” wiretaps that allow individuals to be tracked across devices, and a second on “lone wolf” terrorists that aren’t linked to any known terrorist organization.

The House bill also reauthorizes a third: Section 215, which allows the government to request “tangible things” such as documents relevant to a national security investigation, but makes changes, including ending a controversial phone surveillance program.

After negotiations with libertarian-minded lawmakers and progressives it also makes some changes to the FISA process, including requiring the attorney general to sign off on applications tied to an elected official.

But some lawmakers argue that does not go far enough to reform the court after Justice Department Inspector General Michael Horowitz found 17 inaccuracies and omissions in the warrant applications regarding Page. In a follow-up interim report on a broader FISA applications review, Horowitz’s team looked at 29 applications and found errors in all of them.  

In addition to the Lee-Leahy amendment, Senate leadership agreed to vote on an amendment from Sen. Rand Paul (R-Ky.) that would prevent the FISA court from being used against Americans and an amendment from Sens. Steven Daines (R-Mont) and Ron Wyden (D-Ore.) to prevent law enforcement from obtaining internet browsing and search history without a warrant.

The Senate will vote on Paul’s amendment Thursday. It rejected the Daines-Wyden amendment, which needed 60 votes to be included, on Wednesday.

“The House bill fails to prohibit the warrantless searches of browsing data and internet search history and it fails to include any meaningful oversight and accountability. We need to get government out of our private lives and instead prioritize freedom and privacy,” Daines said ahead of the vote.