Senate strikes its own deal for short-term extension of surveillance powers

The Senate approved a short-term reauthorization of three expired national security surveillance provisions Monday after a deal was struck between Senate leaders and critics of the surveillance law.

The Senate passed the 75-day extension of the trio of authorities in the Foreign Intelligence Surveillance Act by unanimous consent. The provisions expired on Sunday, so technically the extension was retroactive to 77 days.

The quick action on the extension came after the Senate had planned to move to cut off debate on the House’s FISA bill, which passed last week. But critics like Sens. Mike Lee of Utah and Rand Paul of Kentucky had vowed to filibuster the legislation, meaning it would have eaten up much of the Senate’s week as it prepares to deal with coronavirus legislation also passed by the House last week.

Senate Majority Leader Mitch McConnell, a Kentucky Republican, said that when the Senate debates the full reauthorization of the three FISA authorities, it will vote on amendments from Lee and Paul, who are pushing for additional representation for targets of FISA warrants and limits on the searches that can be conducted on Americans under the law.

The Senate’s short-term extension will still have to be approved by the House, which is in recess this week. That means that changes must be approved by unanimous consent in the House, and any House member could object. But the House is already planning on approving changes to its coronavirus bill by the same tactic, although that plan has hit some hurdles.

A senior Democratic aide says House Democratic leadership is discussing what to do about FISA following the Senate’s short-term extension.

The Senate’s deal on a shorter extension of the surveillance law was one more curveball for the FISA reauthorization that’s been at the center of the political storm over the FBI’s Russia investigation and the FISA warrants obtained for former Trump campaign adviser Carter Page.

The House passed the measure last week 278-136 following negotiations between Democratic and Republican leaders and Attorney General William Barr, leading to changes to the law dealing with both privacy protections and misconduct related to the Page warrants documented by the Justice Department inspector general.

A bipartisan group of senators in both parties is opposed to the FISA law, including Paul, Lee and Democratic Sen. Ron Wyden of Oregon.

Last week, Lee pushed for a 45-day extension and the consideration of several amendments, but Senate Intelligence Chairman Richard Burr of North Carolina objected.

McConnell, Burr and other Senate GOP leaders had urged the Senate to quickly pass the House’s bill this week before Monday’s agreement was struck.

“The Senate should not wait to act. 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 authorities, and we’ll be able to get these tools back online this week,” McConnell said earlier in the day Monday.

The surveillance provisions being renewed are not connected to the FISA court, but Lee argued the Senate still nevertheless should take the opportunity to make changes to the overall law.

“We know the law itself as a whole is subject to abuse, and that at moments like these when these provisions are expiring, it’s appropriate for us to take a broader look at the overall legal framework in which FISA operates and to bring about reforms,” he said.

One potential wild card that remains is President Donald Trump, who has ranted about the government’s use of FISA in the Russia investigation for years now. While Barr was a key negotiator in the House’s agreement, Trump suggested on Twitter last week that he might veto the bill.

“Many Republican Senators want me to Veto the FISA Bill until we find out what led to, and happened with, the illegal attempted ‘coup’ of the duly elected President of the United States, and others!,” Trump tweeted Thursday.

On Friday, however, House Minority Leader Kevin McCarthy of California and House Intelligence Committee ranking member Devin Nunes of California, who both played a key role in the bill negotiations, went to the White House to meet with Trump.

“The President will sign it. He told me he will,” McCarthy said later in the day.

This isn’t the first time that the FISA provisions have briefly lapsed: Paul’s filibuster in 2015 also forced a delay in the Senate’s vote to extend them.

The three authorities the legislation would renew comprise the “business records” provision under Section 215, as well as the roving wiretap and lone wolf authorities in the FISA law.

The House-passed legislation includes additional protections under the business records provision, which deals with the government’s ability to obtain tangible things, including preventing the government from obtaining GPS or cell site location data.

But privacy advocates said the change didn’t go far enough to protect individuals in the digital age. “This is basically going to allow basically digital tracking of the American people,” Wyden said last week.

The Oregon Democrat praised the Senate’s plan to vote on amendments Monday.

“Under this agreement the Senate will have an opportunity to debate whether the government can conduct digital tracking of Americans without a warrant,” he said in a statement.

The House’s FISA agreement passed last week after lengthy negotiations between lawmakers who fought intensely over the FBI’s handling of the Russia investigation, including House Intelligence Chairman Adam Schiff of California and Nunes and House Judiciary Chairman Jerry Nadler of New York and Ohio’s GOP Rep. Jim Jordan.

While the expired authorities don’t deal directly with the FISA court, the legislation already includes several changes to the FISA warrant process after Republicans demanded revisions.

The bill requires the attorney general to sign off on FISA applications dealing with elected officials and federal candidates, lets independent monitors review FISA applications, makes it a crime to lie to the FISA court and gives the Intelligence Committee more access to FISA application materials.