Senate Reaches Deal for 77-Day Extension of FISA Authorities

March 17, 2020 by Dan McCue
U.S. Senator Mitch McConnell (R-KY) speaking at the Republican Senate Caucus press conference in Washington, D.C. on Jan. 7, 2020. (Michael Brochstein/Sipa USA/TNS)

WASHINGTON – The Senate reached a short-term deal Monday night on reinstating national security authorities that expired over the weekend, giving the chamber a chance to pivot to debate coronavirus relief legislation.

Senators unanimously agreed to a 77-day extension of three Foreign Intelligence Surveillance Act powers in exchange for a debate over amendments to the spy law, which has come under intense scrutiny ever since the release last December of a scathing Justice Department watchdog report.

The bill for the 77-day extension, which includes two days retroactive to Saturday, now heads to the House.

The FISA powers under scrutiny were last reauthorized in 2015 and had been set to sunset in December 2019 but were temporarily reauthorized until March 15.

The deal on the extension came after Senate Majority Leader Mitch McConnell took to the Senate floor earlier in the day to say he wanted to see swift action on the FISA bill, praising the bipartisan House bill that had been sent over to the Senate chamber last week.

That authority lapsed late Sunday night after a trio of senators opposed a bipartisan House bill that would have both renewed them but also imposed new safeguards to protect the rights of American citizens.

“Barring Senate action, these important tools, which help protect the homeland from terrorists and counter foreign intelligence activities on U.S. soil, will remain offline,” McConnell said.

“Fortunately, in the weeks leading up to this deadline, the attorney general engaged in extensive bipartisan talks with members of the House of Representatives on both parties to reach a solution,” he said.

“The resulting legislation, which the House passed last week by large margins within each party, strikes a key balance. It reauthorizes the tools which our national security requires, while also imposing a number of new reforms which basic accountability demands,” McConnell added.

The House bill, which passed 278-136 on Wednesday, updates the three expiring surveillance provisions, including one that permits the FBI to obtain court orders to collect business records on subjects in national security investigations.

Another, known as the “roving wiretap” provision, permits surveillance on subjects even after they’ve changed phones. The third allows agents to monitor subjects who don’t have ties to international terrorism organizations.

The bill was the product of bipartisan negotiations between House Democrats and House Republican leader Kevin McCarthy.

The revised bill would scale back some current authorities, such as the government’s access to certain records. It would also attempt to put stronger checks on some surveillance measures and make the process more transparent.

Both Democrats and Republicans had sought those reforms to varying degrees.

“As with any negotiation, no one side is getting everything they want, but we believe it’s important to enhance transparency and privacy safeguards wherever possible,” Democratic Reps. Jerrold Nadler and Adam Schiff, the chairmen of the House Judiciary and Intelligence committees, respectively, said in a joint statement.

McConnell had hoped to pass the measure in the Senate last Thursday, but was forced to postpone the vote due to opposition from Sens. Mike Lee, of Utah, Rand Paul, of Kentucky, and Ron Wyden, of Oregon.

On Monday, McConnell said, “We can’t let the relative success of these tools at preserving the safety and security of our nation mislead us to believe they are unnecessary. It’s just the opposite.”

The Republican leader went on to remind his colleagues that “terrorist organizations … search constantly for opportunities to strike on American soil” and that hostile foreign actors “still seek to conduct operations within our borders, to recruit assets and agents among our population.”

“These threats will not wait around if the United States delays restocking our toolbox. And so the Senate should not wait to act,” McConnell said. “I sincerely hope that even our colleagues who may wish to vote against the House bill will not make us prolong this brief lapse in authority, and that we will be able to get these tools back online this week.” 

McConnell reached an agreement with Lee Monday night, as the negotiations over emergency funding to respond to the nationwide coronavirus outbreak took center stage.

The senator from Utah announced the agreement on Twitter a short time later.

“We locked in a deal to get real debate and actual votes on amendments that will fix the FISA program so that the spying that happened in 2016 never happens again,” Lee tweeted. “It shouldn’t be this difficult to get votes on amendments. The American people expect us to vote.”

Republican allies of President Donald Trump have demanded FISA reform after Justice Department Inspector General Michael Horowitz released a report in December that criticized the DOJ and the FBI for at least 17 “significant errors and omissions” related to the FISA surveillance of Trump campaign associate Carter Page, a U.S. citizen who was never charged with wrong-doing.

The report also rebuked the agency for its heavy reliance on British ex-spy Christopher Steele’s salacious and unverified dossier.

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