Key surveillance tool could run out Friday as senators struggle to reach agreement to beat deadline

By Ted Barrett, CNN

A critical intelligence community surveillance tool could lapse temporarily Friday unless senators reach an agreement to speed passage of a bill that would renew the program for two years.

That cooperation would be needed from Senate critics who have myriad of complaints about Section 702 of the Foreign Intelligence Surveillance Act, notably that the government can get access without a warrant to data from foreigners including when they are interacting with Americans.

Senate Republican Whip John Thune said if the Senate is going to meet its deadline, members of his conference will need to get, at a minimum, a vote on an amendment requiring warrants for any spying on Americans. A similar amendment narrowly failed in the House last week when the bill was passed there.

“We are going to have people who will want amendments, and so that’s what it’s going to take. I assume they’ll want to have the same vote they had in the (House) on search warrants,” he said. “There is going to be a bit of a pile up, I think. But hopefully we’ll be able to transact FISA.”

Without a time and amendment agreement, it could take the Senate until Sunday to process the bill, meaning a lapse in the programs would occur.

One conservative senator with concerns over FISA was hopeful Democrats who control the chamber will cede to their demands and the bill will pass in time.

“I would imagine we get amendments considering how important this is,” said Alabama GOP Sen. Tommy Tuberville, who said most of the Republicans he’s talked to would be satisfied if they got votes on amendments.

“They don’t want this to run out,” he said referencing pressure on Democrats to make a deal.

A top Democratic senator, Majority Whip Dick Durbin of Illinois, told reporters Monday that he believes the intelligence community could continue eavesdropping for a year or more even after the program lapses.

“My staff tells me there are provisions for that possibility, that they can continue applying FISA, I think, for a year or even longer,” he said.”

But that was sharply disputed by top Republicans.

“That’s not true,” said Republican Sen. John Cornyn of Texas, who is on the Senate Intelligence Committee. “I know there is a legal theory that because the Foreign Surveillance Court certified the program for a year that somehow, maybe, we can continue to use those tools. But I don’t believe that’s true. I think that certification was in expectation that the authorization would resume.”

Cornyn added that it’s very important the authority is not interrupted: “60% of the president’s daily brief is composed of 702 derived material, so this is absolutely critical.”

Sen. Thom Tillis, a Republican from North Carolina, agreed.

“I think that if it’s not authorized, you have to be very careful with it. As sympathetic as I may be to that concept, they better follow the law,” he said. “That was an unproductive comment by Sen. Durbin, probably out of frustration. But that is not what we want to be doing.”

One Democratic aide involved in the issue said when there was a previous lapse in Section 702 authority, providers like Google and AT&T stopped giving material to the government, so that would be at risk now.

Republican senators who are demanding FISA amendment votes are some of the same group that is frustrated that Democrats are poised to short-circuit the impeachment trial of DHS Secretary Alejandro Mayorkas when it hits the floor Tuesday and Wednesday. Republican Sen. Mike Lee of Utah is venting that frustration, in part, by forcing the Senate to take time-consuming procedural votes on motions that are typically approved by unanimous consent.

Durbin was asked if he was concerned Lee’s moves could cause FISA to lapse.

“I’m always concerned with Mike Lee,” he said.

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