Senators agreed Thursday to reauthorize a controversial surveillance authority a day before its expiration, clearing a final hurdle on the turbulent path to the president’s desk.
Lawmakers voted 65-34 on a House bill that would re-authorize Title VII of the Foreign Surveillance Intelligence Act (FISA) for six years. That includes Section 702, which allows the government to monitor foreigners overseas for foreign intelligence reasons. Privacy hawks have raised concerns about how the government handles Americans’ information that is swept up under the authority, which is by law focused on foreigners.
Before Christmas, lawmakers agreed to delay FISA 702’s expiration date until January 19—and tension over the legislation has only been building since.
On the House side, the renewal effort withstood a contradictory tweet from the president, an amendment that some worried could significantly disrupt the vote tally, and an initial GOP effort to include so-called ‘unmasking’ provisions in an earlier, pre-Christmas draft of the legislation. After the legislation cleared the House 256-164 last week, leadership on the Senate side moved to block amendments and, days later, rallied just enough votes to block a filibuster.
Senators Rand Paul and Ron Wyden, whose USA Rights Act was offered as an amendment in the form of a substitute to the House bill, threatened to filibuster the Senate bill about a week before Thursday’s vote. They expressed frustration over efforts from Senate leadership to limit debate and amendments—a sentiment also expressed by minority leader Chuck Schumer, as well as some Republicans that voted for the bill Thursday.
“I don’t like the fact that we’re not allowed to consider amendments,” Louisiana Republican John Kennedy told reporters Tuesday. “I don’t like that at all.”
Kennedy was the final Republican that night to vote in favor of limiting debate on the Senate bill, thereby advancing it toward final passage and blocking a filibuster. Missouri Democrat Claire McCaskill showed up after the vote had been open for nearly an hour and tipped the tally to the requisite 60—though she had a 103 degree fever at the time.
The 702 renewal effort has splintered Republicans, with members like Paul and Senator Mike Lee pitted against members like Senate Intelligence chairman Richard Burr and Texas senator John Cornyn. “I respect the fact that some still disagree with us,” Burr said in floor remarks Thursday, adding, “though the number is small.” The renewal effort has also divided Democrats, with senators like Wyden pitted against McCaskill and Mark Warner, the top Democrat on the Intelligence committee.
Thursday’s vote saw some surprises, though. Schumer, who criticized the bill and said it “should go somewhat further” on Tuesday, voted for it two days later. As did Texas senator Ted Cruz, who on Tuesday night stood alongside Lee, his close friend, and appeared to be urging Kennedy to vote against wrapping up debate.
“I believe 702 interception of foreign terrorist communications is a vital national security tool,” Cruz told TWS after the vote. “I also believe we should have taken up amendments to strengthen civil liberties protections.”
McCaskill’s vote Tuesday, along with 17 other Democratic votes, including that of California senator Dianne Feinstein, drew intense pushback from progressive privacy groups.
Minority leader Nancy Pelosi also drew fire from privacy advocates after her vote in favor of the House FISA bill. She ended up expressing support for the legislation in convoluted floor remarks the day of the vote, all the while noting that she does not “consider it a reform bill.” One Republican member told TWS that Pelosi “reneged” on a promise to write a public letter in support of the renewal bill ahead of the vote.
The top Democrat on the House Intelligence Committee and a prime backer of the bill, Adam Schiff, did not appear eager to discuss Pelosi’s treatment of the legislation after the House vote. Asked whether she had deliberately left her position ambiguous, Schiff inched away slowly. “No, the leader has been supportive and I think her support was essential,” he said as he slipped into the elevator. Even in the run-up to the vote today? “Yes.” And on the floor earlier as well? “I mean I think she certainly …” he began. Then the doors shut.
The 702 debate has centered on something that civil liberties advocates dub the ‘backdoor search loophole,’ when intelligence agencies search Americans’ information in the 702 database. Libertarian-leaning members like Paul say a warrant should be required for such searches. But national security-minded lawmakers say that goes too far, and would rebuild the pre-9/11 ‘wall’ between criminal matters and foreign intelligence.
The Senate-passed bill requires the FBI, when conducting a search in connection with an existing, non-national security criminal investigation, to get a warrant to view Americans’ information collected under 702. Its supporters say it introduces reforms that strike a balance between privacy and national security, while opponents counter that the requirement is too narrow and would rarely apply.
“This bill is not perfect, but it will provide our Intelligence Community with the legal authority to continue to collect vital foreign intelligence necessary to keep Americans and our allies safe, while incorporating provisions that strengthen the privacy and civil liberties of individuals,” the Intelligence Committee’s top Democrat, Sen. Warner, said in a statement after the vote Thursday.
