The intelligence community has a key supporter in Congress in its attempt to extend a broad warrantless monitoring programme. Even he believes its authorities aren’t presenting a strong enough argument.
“One of the things the community needs to do a better job of is describing, in practical non-classified terms, how valuable this instrument is,” Senator Mark Warner (D-Va.) said in a recent brief interview. “And they haven’t done it as well as they should have.”
Warner is at the centre of a months-long fight over whether to reauthorize the warrantless monitoring programme, known as Section 702, before the end-of-year deadline. The programme is intended to collect electronic communications from foreigners abroad, but it also has the potential to collect those from Americans.
The Virginian, who believes the programme must be continued in some form but is open to adjustments, will have his job cut out for him. Prominent and increasingly emboldened House Republicans have made it clear that they would not reauthorize Section 702 unless significant modifications are made — if they support reauthorization at all — in the midst of an all-time low relationship with the Justice Department and the FBI.
Section 702 critics include House Democrats and senators from both parties, many of whom believe this is their greatest chance to impose greater restrictions on the programme.
Warner is attempting to counter sceptics by beginning negotiations early, bucking a congressional culture that frequently leads to inaction until an impending deadline forces action. And he’s increasing public pressure on the intelligence community to give him more to work with as he seeks to persuade wary colleagues, who overwhelmingly rejected officials’ opening request last week that Congress re-authorize the programme in its current form.
“We have to get 702,” Warner stated. “How we get there is something we’re working on. “I’m open to changes.”
He’s already in discussions with other Intelligence Committee members, including Sen. Ron Wyden (D-Ore.), who has previously supported improvements to the programme and stated in an interview that there’s “wide bipartisan support” for modifications.
“I do not feel it provides enough to protect privacy in its current form,” Wyden added. “One advantage of this is that people aren’t waiting until the last minute.”
The intelligence community is attempting to assist sympathisers such as Warner in building their case. This week, Attorney General Merrick Garland and Director of National Intelligence Avril Haines addressed a letter to congressional leaders outlining specific examples of how the warrantless monitoring programme has assisted in countering cyber threats as well as acts by China, Russia, and North Korea.
In addition, the administration intends to continue what it sees as a bigger education effort, but it will have to reconcile Congress’ request for declassified material about the programme with the need to safeguard classified sources.
Warner’s clout in the surveillance reauthorization issue will soon be tested by House Republicans, his own Democratic colleagues, and, in particular, the Senate Judiciary Committee, which also has jurisdiction over the programme and isn’t waiting for the Intelligence Committee to produce legislation. According to a Democratic aide, the Judiciary Committee will hold hearings and attempt to reach a bipartisan agreement.
The top Republican on the Intelligence Committee, Florida Sen. Marco Rubio, said Warner’s colleagues “respect him” and “his knowledge,” but he also hinted at the challenge ahead: “It’s the Senate, and people can respect you while coming to very different views than you.”
Though Warner underlined his willingness to change Section 702, as well as formalise internal intelligence community modifications, privacy advocates remain suspicious that the Virginia Democrat represents Congress’ actual ideological centre on the looming surveillance struggle.
In 2018, Warner was one of just 18 Democrats, along with Independent Sen. Angus King (Maine), who helped halt debate on a warrantless surveillance measure while their colleagues pressed for greater limits. Five of those Democrats have left the Senate since then, and the chamber’s surveillance-skeptic caucus has increased.
Sen. Josh Hawley (R-MO), who succeeded former Sen. Claire McCaskill (D-MO), a backer of the 2018 reauthorization, said he wanted to give it more thinking but had “a lot of worries.”
“I’m becoming increasingly sceptical about the FISA court’s setup and purpose,” Hawley said, questioning whether there were enough safeguards in place on the secretive court that approves and denies surveillance requests under the broader Foreign Intelligence Surveillance Act, which gives the entity its name.
Yet Warner is one of only nine Democrats who voted against a plan in 2020 from Wyden and Sen. Steve Daines (R-Mont.) to shield Citizens’ internet surfing and search history from federal surveillance.
Warner and Sen. Joe Manchin (D-W.Va.) were also the only two Democrats to vote against a separate 2020 bill introduced by Senators. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) that would have strengthened protections for federal surveillance targets. (At the time, Warner expressed concern that it would jeopardise a deal with the House.)
Both schemes he rejected were proposed as amendments to a bill reauthorizing three unrelated monitoring programmes. While the Lee-Leahy idea was eventually incorporated into the legislation, the entire package ultimately failed due to a stalemate between Congress, then-President Donald Trump, and his then-Attorney General Bill Barr.
Lee stated that he intends to bring back some version of the previous legislation and to advocate for “significant improvements” to the programme.
That isn’t the only specific reform being discussed, and several have bipartisan backing. Another popular proposal is to require a warrant to search monitoring databases for Americans. That bill is supported by House Judiciary Committee Chair Jim Jordan (R-Ohio), Wyden, and others; Warner, when asked if he would vote for such a mandate, dodged the topic.
A new political reality is underpinning the debates: Post-Trump fault lines are now rippling through the surveillance debate, according to some Republicans’ determination that the intelligence community overly targeted the former president.
A recently declassified report on Section 702’s use between December 2019 and May 2020 provoked bipartisan concern when it revealed that an FBI intelligence analyst queried surveillance databases using only the name of an unidentified U.S. House member.
A series of reports from DOJ Inspector General Michael Horowitz discovered “widespread” noncompliance by the agency when it came to an FBI mechanism supposed to assure accuracy in surveillance applications.
Yet, the Biden administration is requesting that Lawmakers focus solely on 702, rather than the larger foreign intelligence surveillance bill, and to preserve the program’s purpose substantially intact. Despite the fact that Garland and Haines stated in their letter that they are open to modifications, they stressed that lawmakers must “completely retain its efficacy.”
Rubio acknowledged the obstacles ahead and stated that lawmakers would need to know whether the House or Senate would act first by early to mid-April. If the House begins, it will have to resolve disagreements between Republicans on the Intelligence Committee, who are likely to recommend some adjustments, and Republicans on the Judiciary Committee, who are prepared to push for much broader changes.
“From what I’ve heard, the idea that the House will just reauthorize — a straight reauthorization with no changes — does not appear realistic,” Rubio added.
Warner admitted that, despite his efforts to initiate early negotiations, he had not yet crossed the Capitol to meet with House Republicans.
“If I were to be glib, I’d say I want to talk about something serious,” he remarked, taking a jab at Republicans on the House Judiciary Committee. “But, I’m not going to say that.”
