Reauthorizing the Defense Intelligence Surveillance Program in the U.S. Congress is Suppressed by the National Security Warfare

The U.S. government can gather foreign intelligence without a warrant if the program is renewed. The reauthorization faced a long and bumpy road to final passage Friday after months of clashes between privacy advocates and national security hawks pushed consideration of the legislation to the brink of expiration.

The program known as Section 702 was approved for two more years after bipartisan support came in for the legislation. It now goes to President Joe Biden’s desk to become law. White House national security adviser Jake Sullivan said Biden “will swiftly sign the bill.”

“Mr. President, in the nick of time, bipartisanship has prevailed here in the Senate,” Majority Leader Chuck Schumer said, as the final amendment was defeated. “We are reauthorizing FISA, right before it expires at midnight — twenty minutes before midnight. All day long, we persisted and persisted and persisted in trying to reach a breakthrough, and in the end we have succeeded and we are getting FISA done.”

The U.S. has relied on intel that the country’s surveillance tool has produced for specific operations, such as the killing of 2022, according to officials.

“If you miss a key piece of intelligence, you might miss an event abroad or put troops in harm’s way,” Republican Sen. Marco Rubio said. “You may miss a plot to harm the country here, domestically, or somewhere else. So in this particular case, there’s real-life implications.”

The intelligence program was set to sunset at midnight, but a recent Foreign Intelligence Surveillance Court opinion meant that it would remain operational for at least another year.

Still, officials had said that court approval shouldn’t be a substitute for congressional authorization, especially since communications companies could cease cooperation with the government if the program is allowed to lapse.

The communication service providers will stop cooperating with the United States government in the event of a lapse. That happened in 2008 when the Protect America Act expired.

But despite the Biden administration’s urging and classified briefings to senators this week on the crucial role they say the spy program plays in protecting national security, a group of progressive and conservative lawmakers who were agitating for further changes had refused to accept the version of the bill the House sent over last week.

The amendments that would seek to address the civil liberty loopholes in the bill should be voted on by Majority Leader Chuck Schumer. Schumer was able to make a deal that would allow critics to receive floor votes on their amendments and that would accelerate the process for passage.

Proponents had proposed changing the program to limit the FBI’s access to information about Americans. When Americans are in contact with foreigners targeted by the surveillance tool, their communications are also collected. There is a proposal that would require US officials to get a warrant before using American communications.

“If the government wants to spy on my private communications or the private communications of any American, they should be required to get approval from a judge, just as our Founding Fathers intended in writing the Constitution,” Durbin said.

In the past year, U.S. officials have revealed a series of abuses and mistakes by FBI analysts in improperly querying the intelligence repository for information about Americans or others in the U.S., including a member of Congress and participants in the racial justice protests of 2020 and the Jan. 6, 2021, riot at the U.S. Capitol.

The House and Senate intelligence committees as well as the DOJ warned that forcing a warrant would cause officials to be late in responding to national security threats.

” I think that’s a risk that we can’t afford to take with the amount of challenges we face around the world,” Warner said.

FISA, Warrants, and the Environment: Sen. Cornyn, Warner, Paul, Wyden, Hawley, and Rubio

The program can continue for another year, according to Sen. John Cornyn, but he isn’t sure it’s possible.

Sen. Mark Warner (D-VA) also stressed the urgency of reauthorizing of Section 702, claiming that “sixty percent” of the president’s daily brief comes from material collected through the surveillance program.

Less than three hours before Section 702’s expiration, Sen. Rand Paul (R-KY) introduced a version of the Fourth Amendment is Not For Sale Act as an amendment to the reauthorization bill. It failed 31-61. Paul was clearly frustrated at other senators’ comments that it was too late to add new amendments to the bill.

“The House is still here,” Paul pointed out. “They’re going to be voting tomorrow. We should pass the good amendments today, send them to the House tomorrow.”

After two hours before Section 702 expired the senators took a break to congratulate Susan Collins for making 9000 roll call votes. “Day after day, year after year, our senior-most appropriator has demonstrated, through her dedication: do your homework, show up to vote on everything, on time,” said Sen. Mitch McConnell (R-KY).

Sens. Ron Wyden (D-OR) and Josh Hawley (R-MO) introduced an amendment that would have struck language in the House bill that expanded the definition of “electronic communications service provider.” Everyone with access to equipment that is being or may be used to transmit or store wire or electronic communications can do so under the House’s new provision. The expansion, Wyden has claimed, would force “ordinary Americans and small businesses to conduct secret, warrantless spying.” The Wyden-Hawley amendment failed 34-58, meaning that the next iteration of the FISA surveillance program will be more expansive than before.

Sen. Marco Rubio (R-FL) objected to a warrant requirement for Americans’ communications on the basis that many terrorists — like the 2015 San Bernardino shooters or the Boston Marathon bombers — are American. “If we had suspected them of terrorism and —” he began to say, before he caught himself, and then corrected himself, “none of these were prevented, but if these cases emerged today and we suspected them of terrorism, under this amendment you would not be able to surveil them to prevent a terrorist attack.”

Lee introduced an amendment would expand the role amicus curiae briefs play in FISA court proceedings. With an hour and a half to go until midnight, senators were showing signs of weakness.

The Senate commenced voting on the reauthorization bill with fifteen minutes to midnight, clearing a 60 vote threshold at about midnight. The Senate still hasn’t officially adjourned.