Senate leadership won just enough votes Tuesday night to advance the renewal of a controversial surveillance authority due to expire by the end of the week, the latest bump in the authority’s turbulent road to passage. Lawmakers will likely cast a final vote on the bill this week, paving the way to the president’s desk.
House lawmakers agreed to renew Title VII of the Foreign Intelligence Surveillance Act (FISA) for six years, with some reforms, with a vote of 256-164 last Thursday—but only after the legislation weathered mixed signals from the president, intraparty GOP tension, and an opposing amendment that some feared would upend the renewal effort altogether.
When the Senate quickly took up that bill late last week, Majority Leader Mitch McConnell didn’t seem to want to take any chances. He effectively blocked amendments from being offered to the legislation, much to the dismay of Democrats and libertarian-leaning Republicans.
“Right now, the majority leader is pushing for its passage without debate or amendments,” Minority Leader Chuck Schumer said ahead of Tuesday’s vote. “That’s the wrong approach.”
Section 702, the most hotly debated FISA provision in question, allows the government to surveil foreigners overseas for the purpose of foreign intelligence, defined as information related to “the ability of the United States to protect against an actual or potential attack by a foreign power; sabotage, international terrorism, or the proliferation of weapons of mass destruction by a foreign power; or clandestine intelligence activities by a foreign power.” But when Americans communicate with foreign targets surveilled under the program, their communications get swept up too. That’s where privacy advocates’ concerns come in.
“The bill that the House passed is extreme. In some particulars it actually goes backward,” said Oregon senator Ron Wyden, a Democrat, earlier Tuesday. “We are united especially in saying that a bill of this importance ought to be open to a real Senate debate.”
Wyden and Kentucky senator Rand Paul want intelligence agencies to obtain a warrant before searching data acquired under Section 702 for Americans’ information. Both lawmakers threatened to filibuster the Senate legislation late last week, which privacy advocates charge has a weak warrant requirement that would rarely apply.
GOP leadership needed 60 votes in order to wrap up debate Tuesday and thereby effectively block amendments and a filibuster. But it was unclear whether they would get the backing they needed in a lobbying spectacle that topped off a nearly hour-and-a-half long vote.
The tally ended up 60-38 and hinged on two lawmakers: Louisiana Republican John Kennedy and Missouri Democrat Claire McCaskill.
Hushed pow-wows on the Senate floor grew increasingly tense as the vote count ground to a halt at 58. Kennedy stood surrounded by Wyden, Paul, Utah senator Mike Lee, Texas senator Ted Cruz, and Texas senator John Cornyn, with Cornyn likely pushing Kennedy to vote to limit debate. At one point Lee wagged his finger and raised his voice, prompting a perturbed Cornyn to turn away for a moment.
Kennedy then shuffled over to McConnell. The two spoke, along with Cornyn, for a few minutes. And then Kennedy gave a thumbs up vote.
“The program expires Friday and I don’t want to play with fire on this,” he told reporters afterward. But he said he remained concerned that senators could not consider any amendments.
After Kennedy voted, McCaskill appeared and tipped the tally to 60. “Stay away from me!” she shouted at reporters as she exited the chamber, noting her 103 degree fever. She hurried into the same elevator as Cruz, who moments earlier had somberly recounted: “They brought in Senator McCaskill at the last minute.”
“There was a lot of arm-twisting. We think there was not any torture that we know of that happened,” Paul joked. “There was mental duress, I believe.”
Privacy advocates have raised concerns about the government’s ability to search 702-acquired data for Americans’ information—especially the FBI, which has a dual law enforcement and intelligence mission. The House-based renewal bill attempts to address that concern. It 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. Supporters describe that provision as a fair compromise between civil liberties and national security, while opponents decry it as a sham that would rarely apply.
The debate over FISA reform has only intensified since the 2013 leaks by former NSA contractor Edward Snowden, and has diverged from typical party lines, splintering Republicans.
“I say to those that are opposed to this, I have great affection for all of them,” Senate intelligence committee chairman Richard Burr said ahead of the vote. “They have passion that really displays their belief that the American people need to be protected from government.”
After the votes rolled in, Lee told reporters that he was disappointed with the lack of debate and inability to offer amendments. But, he said, the government’s opposition to the reforms was “not entirely surprising.”
“Just as the sun rises in the east, governments tend to oppose, instinctively, restrictions on their authority. This is not a new debate,” he said. “This is what governments do.”
