Senate Intel chief sees surveillance powers in must-pass legislation

A bill renewing a powerful surveillance authority will “likely” be rolled into must-pass legislation at the end of the year, rather than voted on as a stand-alone measure, Senate Intelligence Committee Chairman Richard Burr said Tuesday.

The North Carolina Republican, whose committee advanced the bill 12-3 in October, did not specify what the vehicle could be, though Congress must approve legislation by Dec. 8 to keep the government open.

If lawmakers approve a short stopgap measure to prevent a shutdown, it’s possible another must-pass spending bill would need to be approved by the end of the year.

{mosads}Burr brushed aside any possibility that the Senate’s final legislation could include a requirement that federal investigators obtain a warrant before accessing the communications of Americans caught up in foreign surveillance.

The committee is in talks with its counterpart in the House as well as the FBI, Burr told The Hill. But he said it is not working with the House Judiciary Committee, which has advanced its own proposal that would require a warrant in criminal investigations.

“No,” he said flatly, when asked if there was any chance of a warrant requirement in the final legislation. “Doesn’t work. When you don’t have enough to file for a warrant, it’s impossible.”

At issue is a law set to expire at the end of the year that has been hailed by law enforcement as a critical tool in identifying and disrupting terror plots.

Known as Section 702 of a package of foreign intelligence amendments passed in 2008, it allows the National Security Agency (NSA) to collect the texts and emails of foreigners abroad without an individualized warrant — even when the subjects communicate with Americans in the U.S.

Federal investigators can then search those communications — again without a warrant — in what critics say is a violation of Americans’ Fourth Amendment protections.

The intelligence community has called for a clean, permanent reauthorization of the authority — something privacy advocates on the Hill say is a nonstarter, at least in the House.

The Senate Intelligence bill specifies that if an FBI search turns up a known U.S. person’s information, it has one business day to submit a request to the secret Foreign Intelligence Surveillance Court, which would then have two business days to weigh in on its legality.

House lawmakers have characterized Burr’s legislation as dead on arrival in the lower chamber, where there is a larger group of reform advocates — but Burr dismissed those concerns Tuesday.  

“I heard that argument before we marked up and I think we found language that accommodated everybody’s belief that this didn’t just leave unfettered access to this information,” he said. “Some of that is still rough around the edges but the architecture is there.”

Close watchers of the debate have long speculated that Senate Majority Leader Mitch McConnell (R-Ky.) may follow a version of the playbook he used in a failed 2015 bid to pass a clean reauthorization of the Patriot Act — wait for the House to go first, then try to pass a clean renewal at the last minute in an attempt to jam it through the lower chamber.

That gambit resulted in a reform measure known as the Freedom Act.

Burr predicted that the final product will hew closely to the original contours of the Senate Intel proposal.

The House Judiciary Committee earlier this month voted to pass a package to extend the law with a limited warrant requirement, a compromise negotiated under the assumption that the conservative Freedom Caucus and privacy-minded Democrats might sink a clean reauthorization in the House.

But the future of that proposal may be in jeopardy. The House Intelligence Committee, which supports less aggressive reforms and shares jurisdiction over the issue, is in quiet talks with leadership about the future of the law.

And leadership has already signaled that there are limits to the reforms they will accept. Judiciary lawmakers say they have been assured that a more stringent warrant requirement than the compromise proposal — which requires a warrant to view the content of Americans’ communications but not to search the database in the first place — is a nonstarter.

The discussions between House Intelligence Committee and leadership have set off alarm bells among supporters of the Judiciary proposal, who are fearful that leadership will attach a watered-down version of the bill to must-pass legislation at the end of the year.

“We are concerned by reports that, over the coming break, your office will meet with the House Permanent Select Committee on Intelligence ‘to chart a path forward’ on Section 702,” a bipartisan group of Judiciary lawmakers wrote in a letter to Speaker Paul Ryan (R-Wis.) before the Thanksgiving break.

“We believe that you will meet resistance on any measure that further weakens the privacy protections built into the USA Liberty Act,” they wrote.

The bill’s companion measure in the Senate, sponsored by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), is seen as having little chance of passage.