Schumer has just hours to avoid the termination of warrantless FISA surveillance

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 at 11:59 p.m. Friday, and he has a tough road ahead to meet the deadline. .

Schumer needs to work around a coalition of Republican and Democratic senators who want to drastically alter the House-passed bill, which would almost certainly result in intelligence and law enforcement agencies losing key officials for a few days.

On the Republican side of the aisle, Senators Rand Paul (Ky.), Mike Lee (Utah) and Josh Hawley (Mo.) are pushing for changes to the bill.

They want to add provisions to prohibit intelligence and law enforcement agencies from purchasing 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 Chairman Ron Wyden (Ore.) and Senate Democratic Leader Dick Durbin (Ill.), intend to rewrite key elements of the bill.

Wyden plans to offer an amendment to reduce language that would broaden the scope of companies required to comply with data requests, while Durbin has an amendment to require warrants to review Americans’ information gathered from surveillance of foreign targets.

But Senate leaders warn that making changes to the bill will prevent it from passing on time and force intelligence surveillance programs to “go dark.”

“There are things I would like to change in the Chamber’s project too. But the reality is that we are 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 Chairman Mark Warner (D-Va.), referring to the surveillance power authorized by Section 702 of FISA.

Warner warned that amending the bill and sending it back to the House would “invite a sunset” on the authority, which he called an “elusive outcome that the president’s own intelligence advisory board said will be remembered as a one of the worst intelligence failures in our country.” time.”

Schumer urged his colleagues not to delay the bill, pointing to the looming deadline.

“Obviously we don’t have much time left before the FISA authorities expire,” he warned.

The Senate voted 67 to 37 to advance the FISA reauthorization bill approved by the House on Thursday, but senators still need to hold at least two more procedural votes just to schedule a vote on final approval, something that could take days unless all 100 senators agree. speed up the process.

Paul says he will postpone the debate beyond the Friday deadline unless he has 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 would survive,” he said, arguing that the country was doing well before Congress passed FISA in 1978.

He said that if FISA fails, intelligence and law enforcement agencies will be able to go to regular courts to secure warrants to surveil Americans and will not need any special permission to spy on foreigners.

“Article III courts are quite lenient. If you go to a judge in D.C. and say, ‘We think this guy has a lot of meth,’ they’re going to wiretap you,” Paul said of regular criminal courts.

Paul said Thursday afternoon that he and his allies want to offer six to 10 amendments to change the bill.

“They all need to get votes. There needs to be enough time to debate them,” he said.

A Republican senator said at least three of those amendments have a chance of passing, which would then require the Senate to send them back to the House before they go to President Biden’s desk for his signature.

One amendment that has a good chance of passing is sponsored by Durbin, the second-ranking Democratic leader in the Senate, 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 captured in surveillance of aliens authorized by Section 702 of FISA. It’s similar to the amendment sponsored by Rep. Andy Biggs (R-Ariz.), which narrowly failed by a vote of 212 to 212.

A Senate Democratic aide said the close vote in the House shows the amendments would have a chance of passing in the Senate. The source warned, however, that the risks are greater now because any changes adopted at this late stage would mean keeping the bill in Congress after the Friday deadline.

Wyden, a senior member of the Intelligence Committee, wants to amend the FISA bill to eliminate language drafted by House Intelligence Committee Chairman Mike Turner (R-Ohio) that he says would drastically expand the number of companies that would be forced to comply with surveillance requests.

“Now, if you have access to any communications, the government can force you to help them spy. That means anyone with access to a server, a wire, a set-top box, a Wi-Fi router, a phone or a computer,” warned Wyden on the Senate floor.

This claim provoked a strong rebuttal from Warner, chairman of the Senate Intelligence Committee.

“This is not about expanding FISA,” he insisted. “It’s a complete mischaracterization.”

He said when Section 702 was drafted 15 years ago, cloud-based data storage and other new technologies did not exist.

“The world of telecommunications has changed since 2008, and things like the cloud in 2008 were something [that] it would 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 approach the deadline without a plan on how to handle the change requirement.

Senate Republican leader John Thune (SD) warned that Schumer will have to agree to vote on the amendments to meet the deadline.

Lee, who is demanding changes to the bill along with Paul, Wyden and other senators, argued Thursday that no real authority would lapse if Congress does not reauthorize FISA by the weekend.

“They are lying when they say FISA 702 collection will end abruptly at midnight tomorrow. It’s not going to happen,” 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 had certification from 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 has certified the program for a year, maybe we can continue to use these tools in some way, but I don’t believe that’s true,” said Cornyn. “This certification was in expectation that the [congressional] the authorization would come into force again and there is no other authority.”