The Senate passed a bill reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), a controversial program that allows warrantless spying on foreign “targets.” but a long, hard, protracted fight over the amendments kept the Senate in session after midnight Friday, when the surveillance program officially expired.
To be clear, the spying wasn't actually going to stop. As Senator Mike Lee (R-OH) noted on the Senate floor Friday afternoon, the FISA court recently granted a government request to allow the program to continue through April 2025.
Senator John Cornyn (R-TX) stated that the extension of Section 702 certification by the FISA court “does not mean that the program can continue uninterrupted for another year.”
“In the event of a lapse,” Cornyn continued, “at midnight tonight, some communications service providers will cease cooperating with the United States government. That’s exactly what happened in 2008, when 702’s predecessor, the Protect America Act, expired.”
“Allowing 702 to expire would be 'an act of unilateral disarmament against the Chinese Communist Party'”
Cornyn highlighted the importance of the FISA spy program, saying, “FBI Director Chris Wray said that allowing 702 to expire would be, quote, an act of unilateral disarmament against the Chinese Communist Party, quote-unquote. So there is a lot at stake.”
Senator Mark Warner (D-VA) also highlighted the urgency of reauthorizing Section 702, stating that “sixty percent” of the president's daily briefing comes from material collected through the surveillance program.
Less than three hours before Section 702 was set to expire, Senator Rand Paul (R-KY) introduced a version of the Fourth Amendment Not for Sale Act as an amendment to the reauthorization bill. (Finally failed 31-61). Paul was clearly frustrated by comments from other senators that it was too late to add new amendments to the bill.
“The idea that we don't have enough time is misleading,” Paul said. “The only reason we don't have time is because supporters of this bill delayed it until the last hour. We've had five years to renew this! In defense of its colleagues, the House had three failed votes on Section 702 before it was finally able to send its bill to the other chamber, leaving the Senate just days before FISA's expiration for its own proceedings.
“The House is still here,” Paul noted. “They are going to vote tomorrow. “We should pass good amendments today and send them to the House tomorrow.”
The House is scheduled to meet Saturday to vote on relief packages and a possible ban on TikTok.
There are two hours left until Section 702 expires, the so-called act of unilateral disarmament against the Chinese Communist Party, Senators then took a five-minute interlude to congratulate Susan Collins for taking her 9,000th roll call vote. “Day after day, year after year, our top appropriator has demonstrated, through her dedication: do your homework, show up to vote on everything, on time,” said Senator Mitch McConnell (R-KY).
The Wyden-Hawley amendment failed, meaning the next version of the FISA surveillance program will be broader than before.
Senators Ron Wyden (D-OR) and Josh Hawley (R-MO) introduced an amendment that would have affected the language in the House bill that expanded the definition of “electronic communications service provider.” Under the new House provision, any person “who has access to equipment that is being used or may be used to transmit or store wire or electronic communications.” The expansion, Wyden claimed, would force “ordinary Americans and small businesses to engage in secret, warrantless spying.” The Wyden-Hawley amendment failed 34 to 58, meaning the next version of the FISA surveillance program will be broader than before.
Both Senators Paul and Dick Durbin (D-IL) introduced separate amendments imposing warrant requirements on surveillance Americans. A similar amendment failed in the House by a vote of 212 to 212. Durbin's stricter warrant requirement would not require intelligence agencies to obtain a warrant to consultation for those communications, although it requires that one access them.
Senator Marco Rubio (R-FL) opposed requiring a warrant for Americans' communications on the grounds that many terrorists, such as the 2015 San Bernardino shooters or the Boston Marathon bombers, are Americans. “If we had suspected terrorism and…” he began, before he realized it, and then corrected himself, “none of this could have been prevented, but if these cases arose today and we suspected terrorism, under this amendment you would not be able to monitor them to prevent a terrorist attack.”
Paul's warrant requirement amendment failed 11-82, Durbin's amendment failed 42-50.
Lee introduced an amendment that would expand the role that amicus curiae briefs play in FISA court proceedings. At that point, with about a half-hour left before midnight and the official expiration of Section 720, senators were visibly faltering.
Rubio began to object to the amendment, but Warner stepped in and took over, saying, “If we can get this done and pass the bill before noon, before midnight, we can reach our goal, and I am committed to working with everyone to achieve it. “We are confident that we can continue to review the amicus proceedings in the next intelligence authorization bill.” Earlier in the day, Warner told his colleagues that the reauthorization is for “just two years,” so they had better approve it.
Lee's amendment failed 40-53.
“Mr. President, at the last moment, bipartisanship prevailed here in the Senate,” Majority Leader Chuck Schumer said when the final amendment was rejected. “We are reauthorizing FISA, just before it expires at midnight, twenty minutes before midnight. All day long, we persisted and persisted and persisted in trying to make a breakthrough, and in the end we did it and we are getting FISA done.”
The Senate began voting on the reauthorization bill fifteen minutes before midnight, passing a 60-vote threshold around midnight. As of this writing, the Senate has not yet officially adjourned.
The bill now heads to the president. If it becomes law, the Section 702 surveillance program will expire in 2026, at which point we will have to do it all over again.
