Following Midnight Deadline, Senate Passes FISA Reauthorization 

Following a midnight deadline, the Senate voted early on Saturday to reauthorize a crucial U.S. surveillance law following divisions over whether the FBI should be restricted from utilizing the program for search for Americans’ data almost forced the lapse of the statute.

The legislation was approved 60-34 with bipartisan support and would extend the program known as Section 702 of the Foreign Intelligence Surveillance Act for two years. It now goes to the desk of President Joe Biden to become law. Jake Sullivan, White House national security adviser, said Biden “will swiftly sign the bill.”

“In the nick of time, we are reauthorizing FISA right before it expires at midnight,” said Chuck Schumer, Senate Majority Leader, when voting on the final passage started 15 minutes before the deadline. “All day long, we persisted, and we persisted in trying to reach a breakthrough, and in the end, we have succeeded.”

Officials in the United States have said the surveillance tool, first authorized in 2008 and renewed numerous times since then, is critical in disrupting terror attacks, foreign espionage, and cyber intrusions and has also produced intelligence that the U.S. has relied on for specific operations, such as the 2022 killing of Ayman al-Zawahri, al-Qaida leader.

“If you miss a key piece of intelligence, you may miss some event overseas or put troops in harm’s way,” said a top Republican on the Senate Intelligence Committee, Senator Marco Rubio, said. “You may miss a plot to harm the country here, domestically, or somewhere else. So, in this particular case, there’s real-life implications.”

The proposal authorizes a renewal of the program, which allows the government to collect the communications of non-Americans located outside the country without a warrant to gather foreign intelligence. 

The reauthorization faced a lengthy, bumpy road to Friday’s final passage following months of clashes between national security hawks and privacy advocates, pushing the legislation’s consideration to the edge of expiration.

Although the spy program was technically set to expire at midnight, Joe Biden’s administration had said it expected its authority to remain operational and collect intelligence for at least another year, thanks to a Foreign Intelligence Surveillance Court opinion earlier in the month, which received surveillance applications.

Still, officials said court approval shouldn’t substitute for authorization by Congress, particularly since communications companies could cease cooperating with the government if the program is permitted to lapse. 

Officials were already scrambling after communication providers’ statements

According to a source familiar with the matter who spoke anonymously to discuss private negotiations, U.S. officials were already scrambling following two major American communications providers’ statements that they would stop complying with orders through the surveillance program.

Merrick Garland, Attorney General, praised the reauthorization and reemphasized how “indispensable” the tool is to the Justice Department.

“This reauthorization of Section 702 gives the United States the authority to continue to collect foreign intelligence information about non-U.S. persons located outside the United States while at the same time codifying important reforms the Justice Department has adopted to ensure the protection of Americans’ privacy and civil liberties,” said Garland in a Saturday statement.

However, despite the Biden administration’s urging and briefings, which are classified to senators this week, on the critical role they say the spy program plays in protecting national security, a group of conservative and progressive legislators who were agitating for additional changes refused to accept the version of the legislation the House sent over last week.

The lawmakers demanded Majority Leader Chuck Schumer permit votes on amendments to the legislation that would aim to address what they see as loopholes in civil liberty contained in the bill. In the end, Senator Schumer was able to cut a deal allowing critics to receive votes on the floor of their amendments in exchange for increasing the speed of the passage process.

The six amendments failed ultimately to gather the necessary support on the House floor to be included in the final passage. 

One of the significant changes detractors proposed focused on restricting the FBI’s access to information about Americans through the program. 

Although the surveillance tool only targets non-Americans located in other countries, it additionally collects Americans’ communications when they are in contact with those targeted foreigners. 

Number 2 Democrat in the chamber, Senator Dick Durbin, had been pushing a proposal that would require American officials to get a warrant before accessing U.S. communications.

“If the government wants to spy on my private communications or the private communications of any American, they should be required to get approval from a judge, just as our Founding Fathers intended in writing the Constitution,” said Durbin.

In the past year, American officials have revealed several mistakes and abuses by FBI analysts in improperly querying the intelligence wealth of information about U.S. citizens or others in the U.S., including a Congressional member and participants in the racial justice protests of 2020 and the January 6, 2021, incident at the Capitol.

However, members of both the Senate and House intelligence committees and the Justice Department warned that requiring a warrant would seriously handicap officials from rapidly responding to imminent national security threats.

“I think that is a risk that we cannot afford to take with the vast array of challenges our nation faces around the world,” said Democratic Senator Mark Warner, chair of the Senate Intelligence Committee, on Friday.