US Senate has agreement on FISA reauthorization, will vote on Friday night
If the Senate votes to reauthorize the Foreign Intelligence Surveillance Act, which the House approved last week, it would secure what supporters call a key element of the United States’ foreign intelligence-gathering operation. The law is set to expire at midnight Friday.
The US Senate has reached an agreement to approve the reauthorization of a controversial surveillance program and plans to vote on it on Friday night, Senate Majority Leader Chuck Schumer said.
If the Senate votes to reauthorize the Foreign Intelligence Surveillance Act, which the House approved last week.
It would secure what supporters call a key element of the United States’ foreign intelligence-gathering operation.
The law is set to expire at midnight Friday.
“It’s an important part of our national security toolkit and helps law enforcement stop terrorist attacks, drug trafficking, and violent extremism,” Schumer said in a written statement.
FISA has attracted criticism from both Republican and Democratic lawmakers, who argue it violates Americans’ constitutional right to privacy.
The bill was blocked three times in the past five months by House Republicans bucking their party.
Before passing last week by a 273-147 vote when its duration was shortened from five years to two years.
The White House, intelligence chiefs and top lawmakers on the House Intelligence Committee have warned of potentially catastrophic effects of not reauthorizing the program, which was first created in the aftermath of the Sept. 11, 2001, attacks.
Although the right to privacy is enshrined in the U.S. Constitution, the data of foreign nationals gathered by the program often includes communications with Americans, and can be mined by domestic law enforcement bodies such as the FBI without a warrant.
That has alarmed both hard-line Republicans and far-left Democrats. Recent revelations that the FBI used this power to hunt for information about Black Lives Matter protesters, congressional campaign donors and U.S. lawmakers have raised further doubts about the program’s integrity.
US Senate Passes Two-Year Extension of Surveillance Law Just After It Expired
In a statement, Attorney General Merrick B. Garland praised the bill’s passage, calling Section 702 “indispensable to the Justice Department’s work to protect the American people from terrorist, nation-state, cyber and other threats.”
Ahead of final passage, the Senate rapidly voted down a series of amendments proposed by privacy-minded lawmakers.
Approving any of them would have sent the bill back to the House, allowing the statute to lapse for a more significant period.
“Any amendment added to this bill at this moment is the equivalent of killing the bill,” warned Senator Mark Warner, Democrat of Virginia and the chairman of the Intelligence Committee.
While the program has legal authority to continue operating until April 2025 regardless of whether Congress extended the law.
The White House sent a statement to senators on Friday warning them that a “major provider has indicated it intends to cease collection on Monday” and that another said it was considering stopping collection.
The statement did not identify them, and the Justice Department declined to say more.
The statement also said that the administration was confident that the FISA court would order
any such companies to resume complying with the program.
But that there could be gaps in collection in the meantime and if a rash of providers challenged the program,
the “situation could turn very bad and dangerous very quickly.”
It urged senators to pass the House bill without any amendments before the midnight deadline.
But Senator Rand Paul, the libertarian-minded Kentucky Republican, rejected the rationale
and said the Senate should be allowed to debate changes even if it would prompt a brief delay.
“This is an argument that has been forced upon us by the supporters of
FISA who want no debate and they want no restrictions,” he said.
“They want no warrants, and they want nothing to protect the Americans.”
In the end, the bill received the 60th vote it needed to pass just before midnight.
But in a twist, after all the urgency, the Senate kept the vote open for more than 40 additional minutes to accommodate
Senator Marsha Blackburn, Republican of Tennessee,
who finally showed up in the nearly empty chamber and added a “no” vote.
The defeated amendments included a measure that would have required the government to get a warrant before viewing
the contents of Americans’ communications swept up in the program. It was defeated, 42 to 50.
Privacy advocates have long sought some form of warrant requirement, which national security officials oppose,
saying it would cripple the program’s effectiveness.
A similar amendment in the House had failed just barely this week on a 212-to-212 tie vote.
Privacy advocates have warned that it is too broadly worded, leaving open the potential for abuses.
Senator Ron Wyden, Democrat of Oregon, criticized the provision as “horribly drafted, sweeping new surveillance authorities
that we will surely regret.”
But Warner pledged to work with colleagues to “further refine” the definition in another bill later this year,
and the amendment to strip the provision was defeated, 34-58.
And the Senate rejected a proposal by Paul to bar the government from buying personal information about Americans from data brokers if it would need a warrant to compel a company to turn over that information directly.
The House last week passed a separate bill, titled the Fourth Amendment Is Not for Sale Act, containing that same measure.
Privacy advocates, who had spent more than a year pushing for a warrant requirement only to see the bill instead expand the reach of the surveillance program, expressed deep frustration.
Among them was Elizabeth Goitein of the Brennan Centre for Justice at New York University School of Law.
“Although some senators fought valiantly to protect Americans’ civil liberties,
they could not overcome the barrage of false and misleading statements from the administration
and surveillance hawks on the congressional intelligence committees,” she said.
“This is a truly shameful episode in the history of the U.S. Congress, and sooner or later, the American people will pay the price.”
Section 702 allows the government to collect, from U.S. companies like AT&T and Google, the messages of foreigners abroad
who have been targeted for foreign intelligence or counterterrorism purposes without a warrant even
when they are communicating with Americans.
The idea is that in the internet era, foreigners’ communications are often handled by domestic companies.
But the tool is controversial because the government also sweeps up messages of Americans to and from those foreign targets.
Civil libertarians in Congress have long raised concerns about the impact of Section 702 on Americans’ privacy rights.
In recent years, they have been bolstered by the hard-right faction of Republicans that has closely aligned itself with
former President Donald J. Trump’s hostility to the F.B.I.
The law traces back to a warrantless wiretapping program that President George W.
Bush secretly created after the terrorist attacks of Sept. 11, 2001.
It violated the Foreign Intelligence Surveillance Act of 1978, which requires warrants for national security wiretapping on domestic soil.
Before the drama in the Senate, the bill came back from another seeming breakdown a week earlier in the House.
As lawmakers were preparing to vote on whether to bring up the bill, Trump urged supporters to “KILL FISA.”
Trump’s blast was part of his yearlong effort to stoke grievances about national security agencies.
His dissatisfaction stems from an inspector general’s finding that the F.B.I. botched applications for traditional
FISA warrants to target a former campaign adviser as part of the investigation into ties between Trump’s 2016 campaign and Russia.
While that was a different kind of national security surveillance traditional FISA requires warrants to target people
on American soil 19 hard-right Republicans blocked the House from taking up the Section 702 legislation.
Two days later, Speaker Mike Johnson revived it, cutting the extension to two years from five meaning Trump would be in charge
when it came up again if he won the 2024 election and hard-right Republicans allowed the House to vote on the bill.
