Four months ago, as Congress stared down a June 12 deadline to renew a key spy authority, the warnings from intelligence-minded lawmakers against letting the law lapse were stark.
“The consequences, to be frank, could be fatal,” said Senate Intelligence Chairman Tom Cotton, Arkansas Republican.
House Speaker Mike Johnson fretted about losing a tool used to monitor terrorists planning to attack our homeland ahead as the U.S. prepared to host the World Cup and celebrate America’s 250th anniversary.
People were interested in these podcasts
“The reason we have not had a mass casualty event like 9/11 since that great tragedy is because we have this statute,” the Louisiana Republican said.
Senate Majority Leader John Thune, South Dakota Republican, said Democrats’ decision to block the law’s renewal was “almost certainly putting our nation at greater risk.”
The dire warnings turned out to be overblown. Congress did not renew the law and has not taken any steps to do so since it went dark on June 12.
“The biggest development people have seen is that even though the statute lapsed, the world did not end,” Sen. Ron Wyden, Oregon Democrat, told The Washington Times.
The expired statute is Section 702 of the Foreign Intelligence Surveillance Act, a 2008 wiretapping law that allows the U.S. government to collect communications data of foreign targets without a warrant.
The phone logs, emails, text messages and other data collected under Section 702 provide key intelligence that has been used to thwart foreign terrorist plots against America and combat drug trafficking.
While foreigners are the targets, data of U.S. citizens they communicate with are sometimes caught up in the warrantless surveillance.
Mr. Wyden is among a bipartisan group of privacy-minded lawmakers who oppose renewing Section 702 without a requirement for government officials to obtain a warrant before accessing any data collected on U.S. citizens.
He has advocated for the warrant requirement for years but constantly lost to what he calls “the status quo caucus.”
“Oh my God, the world’s going to end. How many attacks do we manage to handle?” Mr. Wyden said, quoting the arguments the status quo lawmakers make every time the statute is set to expire.
“This time we basically made the case: ‘No, that’s just wrong,’ and we prevailed,” he said.
Providers still cooperating
The reason the law’s expiration has not yet had an impact is that communication providers are still cooperating with the government and handing over requested data.
That cooperation is expected to last until March 17, when the Foreign Intelligence Surveillance Court’s annual certification of the government’s procedures for targeting and querying data using the spy tool expires.
“The idea that the statute lapsing was going to mean surveillance would go dark was just a scare tactic meant to put pressure on members to try and push them into a reauthorization without reforms,” Hannah James, counsel with the Brennan Center’s Liberty and National Security Program, told The Times.
The Office of the Director of National Intelligence, or ODNI, has reportedly told lawmakers that Congress needs to reauthorize Section 702 by Thanksgiving so the administration has time to prepare and present its case for recertification to the Foreign Intelligence Surveillance Court.
Ms. James called that “just another attempt to try and manufacture a sense of urgency.”
Jake Laperruque, deputy director of the Center for Democracy and Technology’s Security and Surveillance Project, called ODNI’s November deadline “ridiculous” and said Congress only needs to act by March.
“When you file a new certification it takes a little time for that to get processed by the FISA court, but typically that timeline is a matter of weeks, not a matter of months,” he told The Times.
Ms. Laperruque said the administration just needs to submit a new certification request before March 17, as the text of the FISA law says that if there is a pending certification before the court, the previous one stays active.
ODNI did not respond to multiple requests for comment.
Previous legislative efforts
The House passed a bill in April to reauthorize FISA Section 702 for three years with new restrictions on searching U.S. citizens’ data collected in the process and criminal penalties for abuses of the surveillance authority.
The Senate had plans to take up its own three-year reauthorization of the law, a bill led by Mr. Cotton, but that did not happen because Senate Democrats decided to block any renewal of the law.
Democrats picked a fight on FISA to protest President Trump’s decision to appoint William J. Pulte, the Federal Housing Finance Agency director, as the acting director of national intelligence after Tulsi Gabbard left the administration.
They argued that Mr. Pulte, a Trump loyalist, lacked the necessary national security experience and could use confidential intelligence information to target the president’s enemies after he weaponized private mortgage information against Democrats.
The Senate confirmed Jay Clayton, the U.S. Attorney for the Southern District of New York, to serve as director of national intelligence at the end of July.
Although he replaced Mr. Pulte, effectively eliminating Democrats’ objection to advancing FISA, the Senate did not move to take up the reauthorization.
‘As soon as we possibly can’
Senators in both parties who support reauthorizing FISA Section 702 told The Times that it is still a priority, despite the chamber’s inaction.
“Our goal is still to get FISA back in place as soon as we possibly can,” said Sen. Mike Rounds, South Dakota Republican.
“We need to get it reauthorized as soon as we can,” said Sen. Mark Kelly, Arizona Democrat.
Mr. Thune said he has “always had a sense of urgency” to renew Section 702 because over time it “becomes increasingly dangerous not to have those protections in place in law.”
He said he expects the reauthorization to be among the items Congress tries to address in the lame-duck session after the midterm election and that it could ride on another year-end legislative vehicle.
“We’ve got to do the defense authorization, and it’s fit there in the past, and that could be a vehicle,” Mr. Thune said. “I don’t know, but it’s got to get done.”
Ms. James and Mr. Laperruque both warned that shoehorning the FISA reauthorization into a year-end package would be viewed as an attempt to shut down debate on a warrant requirement for searching U.S. citizens’ data or other changes to the law.
“That would basically be sort of a way to circumvent the democratic process and deny members the opportunity to vote on reforms,” Ms. James said.
Mr. Laperruque said the FISA Section 702 reauthorization “is an important topic that deserves its own debate.”
“If you put reforms on the floor and ask members to vote on extending 702 without serious reforms like the warrant rule, then they’ll pass,” he said. “The biggest question I think is whether we’re going to get a chance to get that vote.”
Sen. Richard J. Durbin, Illinois Democrat and another leading advocate for a warrant requirement, is not confident he will see it enacted before he retires at the end of this Congress.
“My position is a long shot,” he told The Times.
Contact the author
Please read our comment policy before commenting.