Thursday, January 11th 2018 (WASHINGTON) – Next week an authority that members of the intelligence community have called the most valuable tool in America’s fight against terrorism will expire unless reauthorized by Congress.
The House took the first step on Thursday morning, voting to reauthorize Section 702 of the Foreign Intelligence Surveillance Act. Now privacy advocates in the Senate are preparing to fight to reform the controversial government surveillance authority.
Sen. Rand Paul told reporters on Thursday that he plans to filibuster the FISA reauthorization bill when it is brought to the Senate floor.
“I think the Bill of Rights is pretty important. And I think the fact that no American should have their records or their house, or their papers searched without a warrant is a pretty important principle of government, important enough to filibuster,” Paul said.
In a statement later in the day, Paul repeated his commitment to “keep doing everything in my power, including filibuster, to oppose this legislation” he says allows the government to conduct warrantless surveillance against innocent Americans.
The House bill, which will reauthorize Section 702 for another six years, will likely be brought to the floor of the Senate as soon as Tuesday, according to sources on the Hill. It will need 60 votes to pass or the authority will lapse on January 19.
Ron Wyden of Oregon, a prominent privacy advocate on the Intelligence Committee, suggested that he could join Rand Paul’s filibuster. The Democratic senator said he is currently looking at ways to prevent the bill from getting rushed through the Senate.
“I am going to fight with everything I have in terms of a bill that I think is a big mistake,” Wyden told reporters. That includes amending the House bill and ensuring “a real debate” on a bill he charged “does virtually nothing” to protect law-abiding Americans from warrantless government surveillance.
WHAT DOES THE SECTION 702 REAUTHORIZATION DO?
According to both critics and opponents, there has been a lot of misinformation about what Section 702 does and does not do.
Passed in the aftermath of the September 11 attacks, Section 702 gives the National Security Agency the authority to collect and query a vast database of communications data of non-U.S. citizens for foreign intelligence purposes. That information is used to identify threats to Americans at home or abroad and thwart attacks. The NSA is not permitted to intentionally collecting intelligence on U.S. citizens.
Where the law becomes controversial is in granting the NSA the authority to identify suspicious communications between U.S. and non-U.S. persons. This authority was used to incidentally gather data on millions of Americans, according to leaked NSA documents. Though the agency’s spy powers have been curtailed in recent years to prevent the kind of dragnet surveillance described in the leaked documents, the NSA is still able to identify U.S. persons and refer suspicious communications with foreigners to domestic intelligence or law enforcement agencies.
According to supporters, the reauthorization that passed the House on Thursday clarifies both the foreign and domestic intelligence authorities. According to critics, the law expands the government’s spy powers and threatens the Fourth Amendment protections against unreasonable search and seizure.
Former vice chair of the House Intelligence Committee, Rep. Dutch Ruppersberger, D-Md., was a vocal proponent of the latest changes which he said now make it possible for domestic intelligence and law enforcement to effectively use the foreign intelligence database to better identify threats and prevent attacks.
“If you call your local FBI office to report a suspicious person, this program allows the FBI agent to press a button, go through the database and see whether or not that person is connected to any terrorist overseas,” he said, stressing that the information in the database was legally collected under the FISA law or a FISA Court warrant.
If the FBI agent finds something suspicious about a U.S. citizen’s communications with a foreign intelligence target, “they have to get a court order,” Ruppersberger explained. “So if there’s a [foreign intelligence] connection, we start following through with investigating,” he continued, stressing that in order to proceed with that investigation “they have to get a warrant.”
INTELLIGENCE REFORMERS DEFEATED IN HOUSE VOTE
Libertarian Rep. Justin Amash, R-Mich., raised concerns that this authority was too broad, and introduced the USA RIGHTS amendment to require a more rigorous process for getting a warrant on an American citizen based on intelligence gathered under FISA. In total, 183 Republicans and Democrats supported Amash, but it was not enough to introduce the additional oversight.
“The leadership teams on both sides understood we were doing really well, so they pulled out all the stops today…to defeat the amendment,” Amash told reporters. “Certainly would have preferred to have the Amash amendment pass and to have defeated the underlying bill, but we’re going to keep fighting,” he continued.
While the Senate intelligence reformers can still rein in the authorities in the bill, Amash and other privacy advocates are skeptical. “Senators tend to like the surveillance state more than House members. So I think it’s generally a more difficult fight,” Amash said.
Rep. Zoe Lofgren, D-Calif., a co-sponsor of the USA RIGHTS amendment, doubts the Senate will continue the House effort to curb the government’s spy powers. “I think we needed the House to stand up for this have a chance,” she explained. “What we said was if you know you’re searching for an American who is in that [FISA] database for a domestic matter, get a warrant.”
‘THE PRESIDENT’S TWEETS ALWAYS CHANGE THINGS’
Just hours before the House vote, President Donald Trump weighed in on the debate over Section 702, criticizing the “controversial FISA ACT.”
In a tweet, Trump said, “This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?”
The president followed up nearly two hours later, offering a defense of “foreign surveillance of foreign bad guys on foreign land,” saying, “We need it!”
Some in Washington were confused by the tweets in which the president appeared to contradict himself and the position of top intelligence and defense officials who strongly support Section 702 as a critical tool in the fight against terrorism.
The White House later clarified that although the president has concerns about overreach by the intelligence community, “we don’t see any contradiction” in his statements on the FISA Act.
On Capitol Hill, lawmakers pushing for the Amash amendment and other reforms to the surveillance powers were encouraged when they thought the president had joined their camp.
“The presidents tweets always change things,” Rep. Tim Meadows, R-N.C., told reporters ahead of the vote.
The president’s decision to weigh in on the issue ahead of the House vote “has given people pause,” Meadows said. “I think there are some people who are very conflicted on their vote today.”
Sen. Rand Paul was encouraged by President Trump’s tweet this morning saying it “indicated that he thinks there needs to be more oversight of FISA, not less.”
In his recent discussions with the president, Paul said he was heartened that the president appears to support the concept of more robust oversight of the intelligence community.
Paul said he will try to speak with President Trump again about his concerns that the new authorization threatens civil liberties, but the final decision will fall to Congress.
“It’s really up to the Senate now. It’s whether we can get 41 votes to stop it,” he said.
Paul and Wyden are working to pull together a coalition to further reform FISA. A number of Democrats have indicated their support for deeper reforms but Paul says there are only about a half-dozen Republicans he feels he can rely on.
