Senators will return next week to an overdue debate on the limits of the government’s surveillance powers, even as President Donald Trump’s signature on what they may produce is not yet assured.
The Senate had been gearing up to reauthorize and update parts of the Foreign Intelligence Surveillance Act in mid-March before their first abrupt departure from the Capitol at the onset of the coronavirus pandemic. The Senate had passed a 77-day extension of three expired authorities, but the House never took up that measure.
The base bill for Senate floor debate will be a broader House-passed reauthorization and overhaul that represented a compromise among House Democrats, Republicans and the administration, with talks that featured the personal involvement of Attorney General William Barr.
“The House-passed legislation we’ll take up is not a blanket reauthorization of FISA,” Senate Majority Leader Mitch McConnell said Thursday. “It’s a careful update designed to provide greater accountability for the way these authorities are exercised. It will increase transparency in the FISA process and respond to the shameful abuses of 2016 while preserving the toolbox that professionals use to defend us."
Speaking on the Senate floor, the Kentucky Republican advised against adopting amendments that are in order under an agreement announced back in March.
“I hope the Senate will pass it next week free of amendments that would jeopardize important tools that keep America safe,” McConnell said.
In addition to new protections, the FISA bill would revive the authorization for new Section 215 orders that allow for the collection of business and other records of individuals through the FISA court and a roving wiretap provision that permits the government to get orders targeting people who frequently change phone lines or use so-called burner devices to avoid traditional wiretaps on individual lines.
It also would reauthorize the “Lone Wolf” provision, which is a power designed to target suspected terrorists who may not be connected to a larger organization.
Among the amendments in order is a proposal from Republican Sen. Mike Lee of Utah that would expand the circumstances under which an amicus curiae must be appointed for Foreign Intelligence Surveillance Court proceedings to include those involving religious institutions, political figures and other particularly sensitive cases. Sen. Patrick J. Leahy of Vermont has been Lee’s lead Democratic partner in the effort.
All amendments will require 60 votes for adoption, but Lee said Wednesday that he thought the path to passage of the underlying bill could be complicated if proposals from more libertarian-minded senators are blocked.
“Some of that might depend on whether we adopt amendments,” Lee said at the Capitol. “If none of the amendments are adopted, I think it gets tougher to pass it.”
While the Justice Department has been eager to see intelligence tools revived, the president himself has not publicly committed to sign the House-passed agreement into law.
Sen. Rand Paul, R-Ky., who has an amendment in order for a vote that would declare that FISA court provisions cannot be used against U.S. citizens, has been suggesting this week that a Trump veto remains a possibility.
“I think they’ll start with the House bill and we’ll have some amendment votes. I think leadership probably presumes they can beat them all, and, I don’t know, they usually do. We’ll see what happens,” Paul told reporters. “But I think it’s an important debate to have, and I will encourage the president to veto it if it still allows Americans to be abused in FISA court.”
The time agreement for floor debate also includes consideration of an amendment led by Montana GOP Sen. Steve Daines to ensure privacy rights surrounding browser data.
“This is about protecting Montanan’s Fourth Amendment rights and keeping the government from interfering in our lives. I’m glad the Senate will have a chance to stand up for our constitutional rights and pass my bipartisan amendment,” Daines said in a statement after the agreement was announced.
The unanimous consent agreement also grants McConnell the opportunity to offer side-by-side amendments designed to blunt the Daines, Lee and Paul amendments. Leahy will get up to an hour of debate time, as will Sen. Ron Wyden.
Wyden, an Oregon Democrat, said Wednesday that he plans to use his time to talk about the debate over internet browsing history.
“What I’m going to do is I’m going to spell out what it really means to have your browsing history exposed," Wyden said.
Lindsey McPherson and Jennifer Shutt contributed to this report.