Senators in both parties are warning the expanded surveillance authority under the Foreign Intelligence Surveillance Act (FISA) could lapse after Friday because of a battle over amending the House bill, which has become a target of conservative Republicans and some Democrats.
Opponents of the bill could drag the Senate debate past the 11:59 p.m. Friday deadline, which threatens to cause a lapse in warrantless surveillance authority that some lawmakers warn could leave the nation exposed to an attack at a dangerous time.
“It would be a very big problem. FISA’s incredibly important to alerting us of terrorist plots, for example. And I believe the threat of a terrorist attack is much higher than is being discussed,” warned Sen. Susan Collins (R-Maine), a senior member of the Senate Intelligence Committee.
Senate Majority Leader Chuck Schumer (D-N.Y.) announced Monday that he would put the House-passed bill to reauthorize FISA’s controversial Section 702, which empowers the nation’s intelligence agencies to collect the phone numbers of Americans in contact with foreign intelligence targets, on the Senate calendar.
That means it would take more than a week to process the bill on the Senate floor, and opponents of the legislation are threatening to push the debate past the Friday deadline unless they get time to debate and vote on changes to the bill.
Sen. Rand Paul (R-Ky.), an outspoken critic of the FISA program, said he’s willing to let it lapse over the weekend if he doesn’t get changes to the bill considered on the Senate floor.
“We need to debate — we’ve had five years [to reauthorize the program] — I would think we’ve got time to debate whether or not it’s appropriate for our government to spy on its own citizens without a warrant,” he said.
Paul said he would agree to speed up the process depending on “how much debate the Democrats are willing to allow.”
But he said he would have no problem with letting the program lapse, arguing that the country and its intelligence agencies functioned well enough before Congress passed FISA in 1978.
He dismissed colleagues who are warning that a lapse in authority would expose the nation to attack as “scaremongering.”
Paul and his allies critical of the surveillance program last week were energized when former President Trump urged Congress to “kill FISA.”
The Kentucky senator said he plans to offer a companion amendment to the proposal sponsored by Rep. Andy Biggs (R-Ariz.), which failed on a tie vote in the House, to require a warrant to review the data of Americans swept up in the surveillance of foreigners.
He will also offer an amendment to prohibit law enforcement and intelligence agencies from purchasing data on people in the United States and Americans abroad and another to bar those agencies from using to FISA to search an American’s communications even with a warrant.
“I’m not concerned with the date,” he said of the looming deadline. “If all else fails, I think we can live under the Constitution maybe for a day, maybe two days.”
The debate over FISA has sparked internal battles in both the Senate Republican and Democratic conferences.
Senate Republican Leader Mitch McConnell (Ky.) pushed back against Paul’s threat to drag the debate over FISA into the weekend by pledging Monday not to let surveillance authority “go dark.”
“At the end of the week, an essential authority America’s law enforcement and intelligence professionals rely on to monitor and mitigate serious threats is set to expire. A crucial window into the activities of those wish Americans harm is set to go dark,” McConnell said on the Senate floor.
He warned that to let the program lapse would be to “forget the lessons of 9/11,” referring to the attacks on the World Trade Center and Pentagon more than two decades ago.
“We have until Friday to avoid a dangerous lapse in a critical tool for identifying and stopping espionage and terrorism against the United States. If any of our colleagues believes that now is an appropriate moment to make this mission even more difficult, I’d be very interested to hear their rationale,” he said.
Getting the expiring FISA authority renewed by week’s end will be a harder challenge than usual because the Senate will also have to juggle articles of impeachment against Homeland Security Secretary Alejandro Mayorkas, which the House is expected to send across the Capitol at 2:15 p.m. Tuesday.
Senators expect to spend Wednesday afternoon and possibly Wednesday evening debating the impeachment and whether to hold a full trial on the Senate floor.
“There’s going to be a bit of pileup, I think,” Senate Republican Whip John Thune (S.D.) said with a dose of understatement. “We are concerned about FISA, yes.”
Senate Democrats, including Sen. Ron Wyden (D-Ore.), a senior member of the Intelligence Committee, are also criticizing the House-passed bill, which they argue doesn’t go far enough to reforming Section 702.
Wyden warned last week “this bill represents one of the most dramatic and terrifying expansions of government surveillance authority in history.”
“I will do everything in my power to stop it from passing the Senate,” he declared.
The House bill includes several reforms, such as implementing a stricter approval process for searching the 702 database for information belonging to Americans.
But some of the changes to the program angered critics such as Paul and Wyden.
Paul said language was added to the reauthorization of the program to make it easier to prosecute drug-related crimes, and Wyden called some of the changes “stunning” and “staggering.”
Senate Intelligence Committee Chair Mark Warner (D-Va.) said he would oppose amendments to the bill, which was carefully negotiated between Senate and House leaders. He warned changes at this late date would open “a can of worms.”
The measure passed the House Friday after a bruising fight. Speaker Mike Johnson (R-La.) agreed to shorten the program’s authorization from five years to two to placate its conservative critics in his conference.
It passed the lower chamber 273-147 after House conservatives derailed a rule to govern its floor consideration.
Tyler Mitchell