Pro-privacy Republicans and Democrats say they’re worried congressional leaders will try to jam through government snooping powers as part of a must-pass bill at the end of this year, short-circuiting a much-needed debate on the limits of government surveillance.
Section 702 of the Foreign Intelligence Surveillance Act is due to sunset Dec. 31, and civil liberties champions say changes are needed before Congress agrees to extend the law. But the Trump administration and intelligence-hawk lawmakers on Capitol Hill are pushing for as few changes as possible.
It’s turned into a high-stakes game of legislative chicken, with each side wondering whether the other will blink before the deadline for any program to exist at all.
“My concern is that those who make decisions about [FISA] will try to attach it to a must-pass piece of legislation and then we may not have the opportunity to have these privacy requirements in the bill,” said Rep. Ted Poe, Texas Republican.
The powers in question allow the government to target foreigners overseas, collecting their communications. But Americans’ communications — even those in the U.S. — can be snared if they are part of conversations that the targets are having.
Even then the American’s identity is generally shielded, but in some cases it’s become “unmasked,” meaning the intelligence community attaches the person’s name to the communications. That became an issue late last year when then-Trump security adviser Michael Flynn was unmasked, and then had the information leak — a major breach.
But senior intelligence and national security officials insist there is little abuse in the program, and say it’s the government’s best anti-terror tool.
“It has become an indispensable tool by which we can determine and gain information about threats to the United States, about threats to our troops, about weapons of mass destruction, proliferation, about cyberattacks, about any number of things,” said Director of National Intelligence Dan Coats, defending the program at an event sponsored by the Heritage Foundation last month.
The two sides are battling it out on Capitol Hill, where the Senate Intelligence Committee has passed a bill that tracks more closely with the administration. It wouldn’t renew the program permanently, but would extend it through 2025. It also would impose a new hurdle for use of information about Americans — but wouldn’t require a court warrant.
By contrast the bill that cleared the House Judiciary Committee does require a warrant, based on probable cause, before FBI agents can look at Americans’ information in a criminal investigation. The House bill also demands disclosure of the number of Americans who are unmasked, and imposes a 2023 sunset.
Civil-liberties advocates also say the Senate bill would allow “abouts” collection, which lets the government collect communications about a specific target — not just communications to and from the target.
The House Judiciary Committee’s bill, by contrast, prohibits that type of collection.
Some civil liberties groups want to go even further, calling for an end to what they call the “backdoor search loophole.”
“Existing law provides no justification for allowing the government to search for Americans’ communications for ‘foreign intelligence’ purposes without a warrant,” said Neema Singh Guliani, legislative counsel for the American Civil Liberties Union. “We urge Congress to remedy this problem.”
But they worry that pro-FISA advocates will run up until the end of the year and force a choice: Either accept the program as-is, or else risk the end of the most important anti-terror snooping tool in the intelligence arsenal.
Congressional leaders could also include the renewal as part of a year-end spending bill, or “continuing resolution,” forcing a choice between backing Section 702 or shutting down the government.
“If we don’t have this bill renew Section 702 with appropriate limitations, we will find out at the last minute when we go to pass the C.R. that, ‘Oh, there’s a provision in the C.R. that extends Section 702 forever at that point, it will be unstoppable,” said Rep. Jerry Nadler, New York Democrat.
The brinkmanship came to a head last week when Attorney General Jeff Sessions testified to the House Judiciary Committee, and some of the civil rights defenders questioned whether he was willing to see the entire section go away if he held out for full renewal.
“This is a huge gamble,” Rep. F. James Sensenbrenner Jr., Wisconsin Republican, told him. “I want to ask you whether yes or no You want to risk the real possibility that this program will expire by insisting upon a clean reauthorization without a sunset?”
Mr. Sessions said he didn’t want that risk, but said he was worried about requiring a warrant to peek at Americans’ information. He said that “could be exceedingly damaging to the effectiveness of the act.”
Mr. Sensenbrenner countered that the House bill already has an emergency exemption to allow for those high-risk cases. “And yet, people in your department were saying this was no good,” he said.
On the other side of the debate is Sen. Richard Burr, chairman of the Senate Intelligence Committee, who would be okay with sticking a FISA renewal on a must-pass bill, according to Politico.
“I wouldn’t be concerned with that because I think we’ve produced a really, really good bill,” Mr. Burr told Politico. “That solves a lot of the procedural questions.”
Mr. Burr’s office didn’t respond to multiple requests for comment from The Washington Times.
Other senators brushed aside questions from The Times, saying it was too early to figure out strategy.
But Rep. Zoe Lofgren, California Democrat, who is pushing for increased privacy protections on the House’s bill, said those looking to force an all-or-nothing vote are trying to use the clock to get their way.
“They’re not looking for reform, we are,” she said.