Congress has days to reauthorize foreign surveillance program. What if it fails?

President Donald Trump sits with FBI Director Christopher Wray during the FBI National Academy graduation ceremony on Friday, in Quantico, Va.
President Donald Trump sits with FBI Director Christopher Wray during the FBI National Academy graduation ceremony on Friday, in Quantico, Va. AP

Congress has less than two weeks to reauthorize intelligence agencies’ controversial warrantless surveillance program.

And while there are ongoing concerns over the program — Section 702 of the Foreign Intelligence Surveillance Act — former intelligence officials worry that if it’s not reauthorized, alternatives may surface that could upend the careful balance struck between national security and civil liberties.

Focused on passing a major tax cut and preventing a government shutdown before the end of year, lawmakers have shown little urgency when it comes to re-upping the eavesdropping program before its Dec. 31 expiration date. Senate Leader Mitch McConnell, R-Ky., said Monday the program must be reauthorized, though there hasn’t been a minute of debate on the floor about it.

At least a handful of senators from both parties believe that debate is essential, and said Tuesday that if a continuation of the current program is rolled into a spending bill that keeps the government’s lights on into January, as now seems likely, they will support only a short-term reauthorization.

Republican Sen. Mike Lee of Utah said he believes a short-term green light should expire in “a matter of weeks.” If it’s set to last a year or more, his vote on the spending bill can’t be counted on, he said. Sens. Ron Wyden, D-Ore., Rand Paul, R-Ky., Patrick Leahy, D-Vt., and Steve Daines, R-Mont., indicated they would support only a short-term continuation as well.

Meanwhile, intelligence officials have started signaling they mean to continue the program even without reauthorization, at least for a few months.

“Congress is so dysfunctional at this point that this seems to have just fallen off the priority list,” said Susan Hennessey, a former attorney for the National Security Agency and managing editor of the Lawfare blog. “Failing to reauthorize would be a dereliction of duty. This should be really scary to everyone.”

“Nobody really has any idea what’s going to happen,” said Robyn Greene, the policy counsel and government affairs lead for the Open Technology Institute at New America. “Anything is possible because they have no set path forward. Even though this is the one must-pass thing besides a budget, it seems members are acting like this will be negotiated last.”

Section 702 allows the National Security Agency and FBI to collect phone calls, emails, texts and other electronic messages of non-Americans abroad without a warrant. While U.S. persons cannot be a target of investigations conducted under the provision, their communications are picked up incidentally. And once the government has that data, it can search it for evidence of criminal offenses by these Americans, even if the offense has nothing to do with national security. Intelligence officials have repeatedly declined to provide estimates on Section 702’s impact on U.S. persons.

The intelligence community has made it no secret that it considers the program vastly important to the safety of the country. FBI Director Christopher Wray told Congress in October that Section 702 is “essential” and “one of the most important tools we have.” Even limiting it would “would create a serious risk to the American public,” he said.

That’s why intelligence officials have been hinting at a possible way out that would work for a few months. The program is unusual in that it must be reauthorized by Congress but also, every year, by the secret Foreign Intelligence Surveillance Court, which has to approve the government’s procedures for targeting surveillance subjects and also for minimizing the impact on non-targets. Officials have hinted that since the court’s last reauthorization of 702 took place on April 26, 2017, the program can in theory continue without congressional reauthorization until that date next year.

But operating under those terms isn’t ideal, according to Hennessey. One of the concerns: Without action by lawmakers, telecommunications companies may feel they no longer have to comply with orders from intelligence officials to turn over pertinent communications under 702, Hennessey said.

Another possibility, less likely but more concerning, is a return to the era of warrantless surveillance ordered in secret by former President George W. Bush. Claiming authority under the newly-signed Patriot Act, Bush in late 2001 authorized the National Security Agency to eavesdrop —without any supervision, even by a secret FISA court — not only on communications by foreigners outside the U.S., but also on U.S. citizens and green-card holders if a party of the communication was believed to be linked to al-Qaeda.

The program wasn’t made public until a New York Times report in 2005, which the government tried to quash before publication; it continued until 2007 — before the conclusion of court challenges against both the government and the telecommunications companies that cooperated, leaving questions about the program’s legality; many legal experts now say it was unconstitutional.

Section 702 was approved by Congress for the first time in 2008.

Ned Price, a former CIA spokesperson who resigned in February citing concerns with the Trump administration’s handling of intelligence analysis, said that program’s return under President Donald Trump is a legitimate concern.

“I think certainly with this administration, it’s more realistic than we’d like,” said Price, who is currently a lecturer at George Washington University and was on the national security staff of former President Barack Obama. “Section 702 is really an indispensable tool for the intelligence community, and without reauthorization they’ll look into other ways to continue the program.”

The important difference between Section 702 and Bush-era surveillance is that the public knows exactly what the intelligence community can or cannot do under 702, Price said. The balance between protecting privacy and civil liberties and upholding national security is easily upended, and returning to a program not codified by law makes that more likely, he said.

Department of Justice officials have publicly signaled that without Section 702, no communications by foreign persons could be obtained without a warrant. But if Bush-era surveillance were implemented, it likely wouldn’t be acknowledged publicly, said Liza Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program.

“I doubt very much that we would know about it. We probably wouldn’t learn about it until there’s a leak, as we did with Bush,” Goitein said.

Greene said she doubted it would even take that long, as telecommunications companies would likely sue since “we’re well past the era where companies would just comply with that kind of program.”

Under the most likely scenario, Congress will wrap a rushed, short-term continuation of the current program into the budget bill. Goitein said that would probably expire in a matter of months, which means reauthorization would then be plunged into the politics of an election year, with no guarantee the last-minute dance wouldn’t occur all over again. Goitein called it “a case study in how to not make laws.”

“We aren’t supposed to be playing these games,” Hennessey said. “It should be intentional, it should be thoughtful. It shouldn’t be thrown in last minute.”

Kate Irby: 202-383-6071, @kateirby