Senate reaches deal for 77-day extension of FISA authorities

The Senate reached a short-term deal Monday on reinstating national security authorities that expired over the weekend, giving the upper chamber a chance to pivot to debate coronavirus relief legislation.

Senators unanimously agreed to a 77-day extension of three Foreign Intelligence Surveillance Act powers in exchange for a debate over amendments to the spy law, which has come under intense scrutiny ever since the release of a scathing Justice Department watchdog report.

Three FISA authorities expired at midnight. These include: “roving wiretap” powers that let agents continue tracking a suspect even if they keep switching burner phones, the “lone wolf” amendment that allows officials to monitor suspected terrorists with possible links to foreign groups, and the “business records” provision that gives investigators the court-authorized ability to collect documents and follow the money in terrorist plots.

The House voted in bipartisan fashion to renew the powers last week, but the Senate failed to vote on the bill before the weekend after Republican leadership rejected Sen. Mike Lee’s proposal to extend the provisions temporarily on Thursday. These specific FISA powers were last reauthorized in 2015 and had been set to sunset in December 2019 but were temporarily reauthorized until March 15.

The bill for the 77-day extension, which includes two days retroactive to Saturday, now heads to the House. A Democratic aide told Politico that leadership is discussing the next steps.

Senate Majority Leader Mitch McConnell took to the Senate floor earlier in the day and argued that “the Senate should not wait to act” to reauthorize FISA and praised the bipartisan House bill that had been sent over last week. The Kentucky senator said the legislation strikes a “key balance.”

McConnell noted that “several critical authorities that law enforcement uses to keep Americans safe lapsed into expiration” on Sunday at midnight and, “barring Senate action, these important tools which help protect the homeland from terrorists and counter foreign intelligence activities on U.S. soil will remain offline.”

The Kentucky Republican, who argued that the House bill “reauthorizes the tools which our national security requires while also imposing a number of new reforms which basic accountability demands,” urged its swift approval.

But, by Monday evening, as the negotiations over emergency funding to respond to the nationwide coronavirus outbreak consumed the Senate, McConnell reached an agreement with Lee, who last week proposed reauthorizing the FISA authorities in the near term while allowing for debates over possible changes to the law in the coming weeks.

“We locked in a deal to get real debate and actual votes on amendments that will fix the FISA program so that the spying that happened in 2016 never happens again,” Lee tweeted. “It shouldn’t be this difficult to get votes on amendments. The American people expect us to vote.”

Minutes earlier, the libertarian-leaning Lee made his case to colleagues on the Senate floor.

“The president of the United States found that his own rights as an American citizen were abused, as this law was manipulated and was abused in an unholy alliance of partisan political interests against him,” Lee said. “Even though the abuses that we know of that occurred with respect to the president of the United States were not themselves one of these expiring provisions, we know that the law as a whole is subject to abuse and that, at moments like these, when these provisions are expiring, it’s appropriate for us to look at the overall legal framework in which FISA operates and to bring about reforms.”

Lee said there were at least six amendments proposed by himself and fellow Republicans Rand Paul of Kentucky and Steve Daines of Montana, as well as by Democrats such as Patrick Leahy of Vermont and Ron Wyden of Oregon, that McConnell set up for debate.

The House’s proposed legislation included reforms to the FISA process to strengthen congressional oversight and discourage politicized investigations, and the leadership of both parties in the House and Senate, along with Attorney General William Barr, supported renewing those powers and passing the House reforms. Some of the biggest FISA critics among House Republicans, such as Rep. Jim Jordan of Ohio and Rep. Devin Nunes of California, also argued in support of reauthorizing those powers. But Lee and Paul led the opposition in the Senate, and Trump himself hinted he might veto the House’s version of the legislation.

Republican allies of Trump have demanded FISA reform after Justice Department Inspector General Michael Horowitz released a report in December that criticized the DOJ and the FBI for at least 17 “significant errors and omissions” related to the FISA surveillance of Trump campaign associate Carter Page, a U.S. citizen who was never charged with wrongdoing, and its heavy reliance on British ex-spy Christopher Steele’s salacious and unverified dossier.

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