Published by The Lawfare Institute
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On March 16, the Senate punted on the issue of reforming the Foreign Intelligence Surveillance Act (FISA), passing by voice vote a Senate bill that extends key existing surveillance-related provisions for 77 days. The bill, S. 3501, would extend the “business records” provision, as well as the roving wiretap and lone wolf surveillance authorities, through May 30, 2020. Specifically, the bill extends:
The relevant authorities lapsed on March 15. If enacted, the provisions would apply retroactively to March 14, 2020. Notably, the bill does not extend an authority to access logs of Americans’ phone calls that was the basis for an expensive, dysfunctional and defunct National Security Agency system that has been the subject of controversy for years.
How did we get here and what happens next?
Recall that on March 11, the House passed H.R. 6172, a compromise on the FISA reform issues, on a bipartisan 278-to-136 vote. H.R. 6172 would extend the relevant surveillance authorities through 2023 but also includes reforms aimed at limiting existing authorities. Attorney General Bill Barr supported the House bill—but notwithstanding Barr’s endorsement, President Trump issued a veto threat by tweet on March 12.
Trump’s tweet came two days after Sens. Mike Lee and Rand Paul tweeted their own displeasure with the House bill. The two senators threatened a filibuster—which would have eaten up time on the Senate floor needed to consider legislation passed by the House to address the coronavirus pandemic.
Senate Majority Leader Mitch McConnell had scheduled a procedural vote on the House-passed bill for the evening of March 16, but at the last minute scrapped that vote after reaching a deal with Lee and Paul. According to Politico, the two agreed not to oppose the 77-day extension in return for guaranteed votes on a package of amendments when the bill is eventually taken up—presumably sometime before May 30. Lee had this to say: “We shouldn’t have to wait until the moment when we’re on the eve of the expiration of some important legislation and where we have to wait for the president of the United States to weigh in and lean in....From time to time, laws require revision and review and reform. That always necessarily requires amendments.”
It is unclear what happens next with S. 3501, which would need to pass the House and be signed by the president in order to become law. The House is in recess this week, however, so it’s unclear when that chamber will act. It is also unclear exactly what the president will do when the bill is presented to him: after all, he earlier had threatened to veto the House bill, which made reforms to limit the authorities the Senate bill would extend without substantive limitations. Trump would have more freedom to do this if the bill shows up on his desk as a standalone piece of legislation, rather than as part of a package with other materials that would be politically costly to veto.
All in all, this situation is an indicator of general dysfunction within both Congress and the executive branch. These provisions of FISA were already extended in November 2019, tacked onto must-pass legislation with the promise of a future debate over reforms. Then, months later—on the eve of the November extension’s lapse, and in the shadow of a pandemic—the House managed to reach a broad bipartisan compromise with the buy-in of the attorney general. The president then scuttled that compromise, via tweet. The authorities expired, and the Senate once again cannot find a concrete path forward on reform.
But who knows? Perhaps this short-term extension will be different than the last. It isn’t unreasonable to wait to debate these difficult surveillance issues until the immediate crisis posed by the pandemic has passed—but as a result of all this waffling, today the country is in a far worse position from which to have meaningful debate and votes on amendments than it was back in November, when Congress first kicked the can down the road. At the end of May, when the latest extension expires, will Congress be better able to tackle these issues than it is today? Hope springs eternal.