FISA bill stalls as fight over Senate amendment hours before deadline

A bill to reauthorize the Foreign Intelligence Surveillance Act (FISA) warrantless spying program stalled in the Senate on Friday because of a fight over amendments that Senate Majority Leader Chuck Schumer (D-N.J.) Y.), fears that they could be approved and send the project back to the Chamber.

Senators and Senate aides from both parties now say FISA’s Section 702 authority will likely expire at midnight because Schumer is no closer to giving colleagues who want changes the opportunity to vote on his proposals.

In return, senators who want changes to the bill refuse to give up the time needed to allow a final vote before FISA’s expanded surveillance power under Section 702 expires at midnight.

Sen. John Cornyn (R-Texas), a member of the Senate GOP leadership team and a senior member of the Intelligence Committee, said the warrantless surveillance program will likely “go away” because of the impasse in the Senate.

Sen. Kevin Cramer (R-N.D.) told reporters Friday afternoon that Schumer may not even have the 60 votes needed to move the intelligence authorization bill to a final vote unless he agrees to let senators vote on the amendments.

Cramer and Senate Democratic leader Dick Durbin (Ill.) have sponsored an amendment that would require the government to obtain court approval before accessing the contents of Americans’ private communications swept up in Section 702 surveillance. It has a good chance of passing.

“What’s bothering me… is that they’re clearly scared this will go away. What really offends me is that they don’t let us vote on anything that could be approved and that would change their plan. And in doing so, they are demonstrating that they know better than we do, that yes, there are 100 senators, but only one or two should determine what we have the right to vote on because something can pass,” Cramer said.

“All amendment agreements around here start with the premise: ‘Accept it first, make sure it won’t pass, and then let them vote,’” he said. “If that is the case, why do we have the most deliberative body in the world made up of 100 people who each have one vote? We can all go home and let Chuck Schumer do whatever the White House says.”

Durbin told reporters there has been little real negotiation over voting on the amendments.

“I don’t know if they’re in the works,” he said. “I expect an amendment agreement soon.”

Durbin said he has not yet “been approached” about a possible vote on his amendment, which is modeled after the amendment sponsored by Rep. Andy Biggs (R-Ariz.) in the House, which narrowly failed by a vote of 212 votes. 212 earlier this week.

Durbin said his and Cramer’s amendment is more likely to pass than Biggs’ proposal.

“I think it’s narrower than this amendment and has a better chance of passing,” he said.

While the Durbin-Cramer proposal would have required an amendment to access the content of Americans’ communications included in the 702 program, the Biggs amendment would have required a warrant to review Americans’ data more generally.

The other amendments that have a good chance of passage are proposals sponsored by Senators Ron Wyden (D-Ore.) and Mike Lee (R-Utah).

Wyden’s amendment would target language added to the bill by House Intelligence Committee Chairman Mike Turner (R-Ohio) that would expand the scope of companies required to comply with government surveillance and data requests.

Wyden warned on the floor that the provision is written so broadly that “there would be virtually no limits on who could be forced to spy for the government.”

“Any company that installs, maintains or repairs Wi-Fi or other communications systems in any American business, home or church could be dragged into this,” Wyden argued on the Senate floor.

The third amendment in question, sponsored by Lee, would expand the role that amici curiae, or friends of the court, would have in Foreign Intelligence Surveillance Court proceedings, giving outside groups the opportunity to rebut or comment on government surveillance requests. .

The Senate approved Lee’s amendment to strengthen third-party oversight of the FISA process by a vote of 77-19 in 2020, but the proposal stalled in the House and did not become law.

Cornyn warned Friday that, if adopted, Lee’s amendment would create a “huge legal hurdle in the 702 process.”

Sen. Lindsey Graham (R-S.C.), leaving a GOP luncheon Friday afternoon, said Schumer is in a difficult position because if the bill is amended, he will have to return to the House before it reaches the President Biden’s desk, which means Congress would exceed the deadline to reauthorize the program.

“If any of them are approved, the project will be thrown into a ditch”, he warned about the amendments.

But he also stressed that if the senators demanding a vote on the amendments refuse to turn back the clock, the FISA bill will not pass the Senate until Monday or Tuesday.