The intelligence community has a critical congressional ally in its bid to reauthorize a sweeping warrantless surveillance program. However, even he thinks its officials aren’t making a convincing enough case.
“One of the things the community’s got to do a better job of is explaining, in practical non-classified terms, how valuable this tool is,” Senate Intelligence Committee Chair Mark Warner (D-Va.) said in a recent brief interview. “And they’ve not done that as well as they should.”
Warner sits at the heart of what will be a months-long, knockout debate about whether to reauthorize the warrantless surveillance program, known as Section 702, by the end-of-year deadline. The program is designed to gather the electronic communications of foreigners abroad, but has the potential to sweep up those of Americans.
The Virginian, who argues continuing the program in some form is essential but is open to changes, will have his work cut out for him. Influential and newly emboldened House Republicans have made it clear they won’t let Section 702 stay alive without significant changes — if they support reauthorization at all — amid an all-time-low relationship with the Justice Department and the FBI.
And the intelligence community can also count Section 702 critics among House Democrats and senators in both parties, many of whom believe this is their best chance to force more limits on the program.
Warner is trying to combat naysayers by discussing negotiations early, fighting against a congressional culture that often leads to delay until an imminent deadline forces action. And he’s ratcheting up public pressure on the intelligence community to give him more to work with as he tries to sell skeptical colleagues, who resoundingly rejected officials’ opening ask last week that Congress re-up the program largely as is.
“We’ve got to get 702,” Warner said. ”How we get there is a work in progress. I’m open to reforms.”
He’s already in conversations with other members of the Intelligence Committee, including Sen. Ron Wyden (D-Ore.), who has previously backed changes to the program and said in an interview that there’s “broad bipartisan support” for adjustments.
“I do not believe in its current form [that] it does enough to protect privacy,” Wyden said. “One of the things that is good about this, is people aren’t waiting until the last minute.”
The intelligence community is trying to help supporters like Warner build their case. Attorney General Merrick Garland and Director of National Intelligence Avril Haines sent a letter to congressional leaders last week that detailed specific examples where the warrantless surveillance program helped counter cyber threats, as well as actions posed by China, Russia and North Korea.
And the administration plans to continue what it sees as a larger education effort, though it will have to balance Congress’ call for declassified information about the program with protecting classified sources.
Warner’s influence over the surveillance reauthorization debate will soon be tested in all corners: House Republicans, his own fellow Democrats and in particular the Senate Judiciary Committee, which also has jurisdiction over the program and isn’t planning to wait for the Intelligence panel to come up with legislation. A Democratic aide noted that the Judiciary panel will hold hearings and try to come up with a bipartisan deal.
Florida Sen. Marco Rubio, the Intelligence Committee’s top Republican, said that Warner’s colleagues “respect him” and “his knowledge,” but still hinted at the challenge ahead: ”It’s the Senate, and people can respect you and still reach conclusions that are very different than your own.”
Though Warner reiterated that he was open to changing Section 702, as well codifying internal adjustments that the intelligence community has made, privacy advocates are skeptical that the Virginia Democrat represents Congress’ true ideological center on the upcoming surveillance fight.
In 2018, Warner was one of only 18 Democrats, plus Independent Sen. Angus King (Maine), who helped cut off debate on a warrantless surveillance bill even as their colleagues pushed for more restrictions. Since then, five of those Democrats have left the Senate, and the chamber’s surveillance-skeptic caucus has grown.
Sen. Josh Hawley (R-Mo.) — a Judiciary Committee member who succeeded former Sen. Claire McCaskill (D-Mo.), a supporter of the 2018 reauthorization — said he wanted to give it more thought but warned he has “a lot of concerns.”
“I’m increasingly skeptical about the set up of the FISA court and its purpose,” Hawley said, questioning if enough guardrails were in place on the secretive court that approves and denies surveillance requests under the broader Foreign Intelligence Surveillance Act that gives that entity its name.
And Warner is one of only nine still-serving Democrats who opposed a proposal from Wyden and Sen. Steve Daines (R-Mont.) in 2020 that would have protected Americans’ internet browsing and search history from federal surveillance.
Warner and Sen. Joe Manchin (D-W.Va.) were also the only two Democrats to oppose a separate 2020 measure from Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) that would have increased protections for federal surveillance targets. (Warner said at the time he had concerns it would disrupt a deal with the House.)
Both plans he opposed were offered as amendments to a bill re-upping three surveillance programs unrelated to Section 702. While the Lee-Leahy proposal was ultimately folded into the legislation, the entire bill subsequently collapsed amid a stalemate between Congress, then-President Donald Trump and his then-Attorney General Bill Barr.
Lee said he planned to bring back some variation of that past legislation and plans to push for “major reforms” to the program.
That’s not the only specific change under discussion, and some already have bipartisan support. Another idea gaining steam is requiring a warrant to search surveillance databases for Americans. House Judiciary Committee Chair Jim Jordan (R-Ohio), Wyden and others support that measure — Warner, when asked if he would vote for such a requirement, sidestepped the question.
Underpinning the discussions is a new political reality: Post-Trump-era fault lines are now rippling through the surveillance debate, thanks to the conclusion among some Republicans that the intelligence community inordinately targeted the former president.
To add further fuel to the problem, a recently declassified report on Section 702’s use between December 2019 and May 2020 sparked bipartisan outrage when it disclosed that an FBI intelligence analyst queried surveillance databases using only the name of an unidentified U.S. House member.
There’s also lingering heartburn from a series of reports from DOJ Inspector General Michael Horowitz that found “widespread” non-compliance by the department when it came to an FBI procedure that was designed to ensure accuracy in surveillance applications.
Still, the Biden administration is asking Congress to stay narrowly focused on 702, rather than address the broader foreign intelligence surveillance law, and to keep the program’s function largely intact. Though Garland and Haines said in their letter that they are open to improvements, they still argued lawmakers need to “fully preserve its efficacy.”
Rubio acknowledged the challenges ahead and suggested that by early to mid-April, lawmakers would need a better understanding of whether the House or the Senate would act first. If the House starts, it will need to reconcile differences between Intelligence Committee Republicans, who are likely to propose some reforms, and Judiciary Committee Republicans, who are prepared to push much more sweeping changes.
“From what I hear, the idea that the House is just going to do a simple reauthorization — just a straight reauthorization without any changes — does not appear likely,” Rubio said.
Warner acknowledged that, despite his efforts at early discussions, he hadn’t yet crossed the Capitol to begin talks with the House GOP.
“If I was going to be glib, I would say I want to talk about something serious,” he said, in a not-so-subtle knock on Republicans on the House Judiciary Committee. “But I’m not going to say that.”