Congress voted Thursday to temporarily extend the reauthorization for the controversial Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008 by three weeks. This gives Congress some extra time to settle bitter differences over how to reauthorize the sprawling National Security Agency (NSA) foreign surveillance program; however, the last-minute move has done little to reconcile competing concerns over the need to maintain superior spy capabilities and Americans’ Constitutional right to privacy.
Neither Republicans nor Democrats are in agreement over how to limit the authority to conduct foreign surveillance on U.S. soil, particularly when it concerns when law enforcement officials can run “backdoor” searches on the massive database of collected surveillance data for information about American citizens.
Privacy advocates in both parties have been embroiled in a months-long dispute with national security hawks over whether to require law enforcement officials to obtain warrants or simply clear procedural hurdles before viewing the private communications of Americans collected under the program. The additional time to debate doesn’t seem to bring either side any closer to a resolution; neither seems willing to budge in their positions in the new year.
With the Friday deadline looming ahead, lawmakers approved a short-term extension of Section 702 with little fanfare as part of the stopgap budget agreement to avert a government shutdown this week. The brief deferment of came after a frenzied but failed effort to rally support for a more long-term measure proposed by Rep. Devin Nunes (R-CA), Chair of the House Intelligence Committee, that would have modified how law enforcement officials are authorized to search a bulk database of collected surveillance information for American citizens’ private communications.
House GOP members of the Freedom Caucus huddled with senior members of the Intelligence Committee in the office of Majority Leader Kevin McCarthy (R-CA) on Wednesday to try to reconcile their differences. The House’s initial plan was to vote on the Nunes measure, that would have required the FBI to obtain a court order before viewing the contents of Americans’ communications found in the database that they hope to use in criminal cases.
That idea was scrapped as Freedom Caucus chairman Mark Meadows (R-NC) proclaimed that no long-term extension would successfully pass through Congress at this juncture, with mounting bipartisan opposition against the bill.
Resolving the Section 702 debate before the statutory end-of-year deadline became less of a priority as Congress focused on more publicized, politically charged debates around health care and tax reform. Three committees endorsed proposals in the past several weeks — but only leaders of the House Intelligence Committee seemed satisfied with the long-term proposal that was floated, and then rejected, days ago.
Nunes said this week that his proposal would probably be the structure for whatever deal lawmakers strike to extend Section 702 in the new year, predicting that several House Democrats would cross the aisle to pass the measure. The restrictions in his bill were first proposed by Rep. Adam B. Schiff (D-CA), the ranking Democrat on the House Intelligence Committee.
A spokeswoman for House Speaker Paul D. Ryan (R-WI) also revealed Thursday that GOP leaders expect Democrats’ votes will be necessary to pass a Section 702 reauthorization in the new year.
It remains unclear, however, that, absent changes, the House Judiciary Committee members will be fully on board. Last month, that panel endorsed a proposal that would have required a warrant to view the results of queries for Americans’ communications. One Congressional aide warned that the Judiciary Committee would have been “near-unanimous in its opposition” to the Nunes bill that was proposed, but not considered, this past week.
The Senate’s concerns, meanwhile, run in the opposite direction, as the most restrictive proposal to have earned the support of the Intelligence Committee imposed only a procedural hurdle requiring the FBI to have the Foreign Intelligence Surveillance Court weigh in on the legality of any query for information on a “known United States person.” On the other end of the political spectrum, privacy advocates such as Senators Rand Paul (R-KY) and Ron Wyden (D-OR) are primed to fight the issue on the floor, vowing to filibuster any such bill.
The short-term extension of Section 702’s statutory authority expires Jan. 19, 2018. With the House not returning to Capitol Hill until Jan. 8, lawmakers will only have a handful of legislative days to settle long-simmering differences.