Sen. Paul Optimistic About FISA Revisions After Senate Extension
Sen. Rand Paul, R-Ky., told us Wednesday he’s optimistic about the bipartisan coalition pushing amendments for Foreign Intelligence Surveillance Act reauthorization (see 2003160065). It’s a “small miracle” the Senate is considering amendments after Majority Leader Mitch McConnell, R-Ky., tried to force a decision on the underlying bill through a cloture vote, Paul said.
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“There’s a bipartisan coalition between progressive Democrats who believe in civil liberties and libertarian Republicans who believe in civil liberties,” Paul said. “The debate will hopefully be a more intelligent one once we’re beyond” the COVID-19 peak and returning to normal.
McConnell said the Senate will consider amendments from Paul and Sens. Mike Lee, R-Utah., and Steve Daines, R-Mont. Lee introduced legislation with Sen. Patrick Leahy, D-Vt., that would prohibit “collection of business records without a warrant if law enforcement would require a warrant for the same search” (see 2003100031).
Daines introduced legislation with Sen. Ron Wyden, D-Ore., that would ban “warrantless collection of geolocation information by intelligence agencies” (see 2001230029). Paul’s amendment would bar the government from surveilling an American citizen without warrant and would prohibit the government from using FISA data against American citizens. Exact language for the amendments wasn’t available.
Lee’s amendment addresses amicus revisions and exculpatory evidence, according to the Congressional Record. Daines told us his amendment would prevent the government from collecting web browsing data of Americans. “The federal government has no business sticking their nose in it. ... You’ll see us fighting on about three different fronts here,” he said. A Daines aide said it expands on the House-included prohibition to collect cell site location and GPS information under Section 215 to include a prohibition on collecting browsing and search history.
Whether any of the amendments gets the 60 votes required to pass is unclear, Paul told us. He said Lee’s effort to revise amicus provisions isn’t a “revolutionary” concept and could get 60 votes.
Senate Intelligence Committee Chairman Richard Burr, R-N.C., who objected to the amendments when they were filed, remains opposed. “I’d rather have straight reauthorization, but it doesn’t look like it’s in the cards,” he told us. He supports the House-passed version, at a minimum.
A co-sponsor of Lee’s bill, Sen. Kevin Cramer, R-N.D., said he supports “protections for individual liberty, not just political candidates.” If it came down to it, he would support the House bill rather than let the authorities lapse. But reauthorizations don’t come up often, so the Senate shouldn’t pass up the opportunity to “do better,” he said.
The Senate should have held a vote on the amendments three months ago, Leahy told us: “To wait for the very last second like we did makes no sense at all.” Revisions to the underlying FISA program and changes specific to Section 215 shouldn’t be “conflated,” Senate Intelligence Committee Vice Chairman Mark Warner, D-Va., told us: “If Leader McConnell had kept us in on Friday, we could have gotten this done on Friday.”
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., told us he doesn’t support a probable cause determination to get business records, as proposed by Lee, “because you don’t have that in the criminal law.”
Legislation from Lee and Daines, as well as Paul’s amendment, would be welcome additions to FISA revisions, said American Civil Liberties Union Senior Legislative Counsel Neema Singh Guliani. That the cloture vote in the Senate didn’t succeed shows members are looking for significant change, she said: The proposals are “reasonable and workable.” The three key points up for debate, she said, will be: limiting USA Freedom Act Section 215 authority, revising amicus provisions, and altering how FISA authorities apply to Americans.