Senate Majority Leader Chuck Schumer (D-N.Y.) has less than 24 hours to reauthorize the Foreign Intelligence Surveillance Act’s (FISA) warrantless surveillance program before it expires at 11:59 p.m. Friday, and he has a tough path ahead to meet the deadline.
Schumer needs to get around a coalition of Republican and Democratic senators who want to dramatically change the House-passed bill, which would almost certainly result in intelligence and law enforcement agencies losing important authorities for a few days.
On the Republican side of the aisle, Sens. Rand Paul (Ky.), Mike Lee (Utah) and Josh Hawley (Mo.) are pushing for changes to the bill.
They want to add provisions to bar intelligence and law enforcement agencies from buying Americans’ data from third parties and to prohibit FISA from authorizing any surveillance or searches of Americans.
On the Democratic side, two of Schumer’s top deputies, Senate Finance Committee Chair Ron Wyden (Ore.) and Senate Democratic Whip Dick Durbin (Ill.) are aiming to rewrite core elements of the bill.
Wyden plans to offer an amendment to cut language that would expand the scope of businesses required to comply with data requests, while Durbin has an amendment to require warrants to review Americans’ information swept up in the surveillance of foreign targets.
But Senate leaders warn that making changes to the bill will prevent it from passing by the deadline and force intelligence surveillance programs to “go dark.”
“There are things I’d like to change in the House bill as well. But the reality is, we’re out of time. The choice is before us — and as we think about amendments, this is the case — pass this bill or allow 702 [to] sunset,” said Senate Intelligence Committee Chair Mark Warner (D-Va.), referring to the surveillance power authorized under FISA’s Section 702.
Warner warned that amending the bill and sending it back to the House would “invite a sunset” in authority, which he called an “unspeakable outcome that the president’s own intelligence advisory board has said will be remembered as one of the worst intelligence failures of our time.”
Schumer urged his colleagues not to delay the bill, pointing to the looming deadline.
“We obviously don’t have a lot of time left before FISA authorities expire,” he warned.
The Senate voted 67 to 37 to advance the House-passed FISA reauthorization bill Thursday, but senators still need to take at least two more procedural votes just to set up a vote on final passage, something that could take days unless all 100 senators agree to speed up the process.
Paul says he will push the debate past Friday’s deadline unless he gets enough time to debate and vote on changes to the bill.
“If all else fails, I think we can live under the Constitution maybe for a day, maybe two days. I think we’d survive,” he said, arguing the country got along fine before Congress passed FISA in 1978.
He said if FISA lapses, intelligence and law enforcement agencies could go to regular courts to secure warrants to surveil Americans and don’t need any 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’ll give you a wiretap,” Paul said of regular criminal courts.
Paul on Thursday afternoon said he and his allies want to offer six to 10 amendments to change the bill.
“They all have to get votes. There needs to be sufficient time to debate them,” he said.
A Republican senator said that at least three of those amendments have a chance of passing, which would then require the Senate to send it back to the House before it goes to President Biden’s desk for a signature.
One amendment that has a good chance of passing is sponsored by Durbin, the No. 2-ranking Senate Democratic leader, and Sen. Kevin Cramer (R-N.D.).
The amendment would require the government to obtain court approval before accessing the content of Americans’ private communications swept up in surveillance of foreigners authorized by FISA’s Section 702. It’s similar to the amendment sponsored by Rep. Andy Biggs (R-Ariz.), which barely failed by a vote of 212 to 212.
A Senate Democratic aide said the close vote in the House shows that amendments would have a chance of passing in the Senate. The source cautioned, however, the stakes are higher now because any amendments adopted at this late stage would mean keeping the bill in Congress past Friday’s deadline.
Wyden, a senior member of the Intelligence Committee, wants to amend the FISA bill to strike out language crafted by House Intelligence Committee Chair Mike Turner (R-Ohio) that he says would dramatically expand the number of businesses that would be forced to comply with surveillance requests.
“Now if you have access to any communications, the government can force you to help it spy. That means anyone with access to a sever, 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 Senate Intelligence Committee chair.
“It’s not expanding FISA,” he insisted. “It’s a complete mischaracterization.”
He said when Section 702 was first crafted 15 years ago, cloud-based data storage and other new technologies didn’t exist.
“The world on telecom has changed since 2008, and things like the cloud in 2008 was something [that] was going to rain on you. Data centers are items that didn’t exist,” he said. “So you have to update your definitions.”
Tensions in the Senate are rising as lawmakers stumble close to the deadline without a plan for how to handle the demand for amendments.
Senate Republican Whip John Thune (S.D.) warned that Schumer will have to agree to vote on amendments in order to make the deadline.
Lee, who is demanding changes to the bill, along with Paul, Wyden and other senators, on Thursday argued that no real authority would lapse if Congress fails to reauthorize FISA by the weekend.
“They are lying when they say that FISA 702 collection will end abruptly at midnight tomorrow. It will not,” he insisted on the Senate floor, noting that Congress included language in the last reauthorization bill that would allow the program to continue as long as it has the certification of the Foreign Intelligence Surveillance Court.
But other senators are disputing that theory, including Warner and Sen. John Cornyn (R-Texas), a member of the Intelligence panel.
“That’s not true. I know there’s a legal theory that because the Foreign Intelligence Surveillance Court certified the program for a year that somehow maybe we can continue to use those tools, but I don’t believe that’s true,” Cornyn said. “That certification was in expectation that the [congressional] authorization would resume in effect, and there is no other authority.”