The Senate is one step closer to reauthorizing a crucial spy powers tool that lapsed in June after voting to move past a procedural hurdle Monday on the way to confirming Jay Clayton as the director of national intelligence.
Democrats have blocked the reauthorization of the Foreign Intelligence Surveillance Act for more than a month over their concerns with the acting head of national intelligence, Bill Pulte, who has been criticized for his lack of experience and his immediate slashing of jobs in the umbrella agency for the U.S. intelligence community.
With Clayton’s confirmation vote scheduled for Tuesday, Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee, said his side of the aisle is more open to renewing the program if Pulte is out and Clayton is in –– although it’s still not a done deal.
“We’ve got to get a new DNI in,” Warner said. “I’m not supporting Mr. Clayton, but it’ll be a vast improvement.”
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Reauthorizing FISA will require 60 votes to get past the Senate filibuster, and with some Republican opposition, Democrats would need to round out the numbers.
Warner did not say which further concessions Democrats might want to see in order to renew the surveillance program, but said the fact that telecommunication providers are still operating under the expired law gives the caucus more leeway in negotiations.
“We’re not under the time crunch that we anticipated because the communication providers are still cooperating,” Warner said. “This was always going to be a lift. The majority of my caucus probably won’t support it … but those of us who are in this national security environment understand it’s got to get done.”
The Senate Intelligence Committee advanced Clayton’s nomination last week in a party-line vote, even though he declined to answer questions about the legitimacy of the 2020 election. Warner, however, has acknowledged Clayton’s experience with intelligence matters; Clayton is currently the U.S. attorney for the Southern District of New York.
Senate Republicans had initially hoped that Clayton’s nomination would push Democrats to extend FISA before it expired in June, a plan that was derailed after Trump instructed Clayton not to attend his hearing.
Sen. John Barrasso of Wyoming, the Senate Republican whip, told reporters last week that he hopes Clayton’s nomination will continue to move FISA forward.
“The idea is to get things moving along as quickly as we can,” Barrasso said. “I want to get FISA reauthorized. I want to get the confirmation done. One has to be done before the other, and we expect to have him confirmed shortly.”
Some Democrats on the intelligence panel told NOTUS that Clayton’s appointment is enough for them to back FISA reauthorization.
“When Bill Pulte is no longer the acting DNI, I think there’s a path forward for FISA,” said Sen. Mark Kelly (D-Arizona). “The hurdle is for the current, acting DNI to get that out of the way, and I think there’s a path to try to expedite this.”
Sen. Angus King of Maine, an independent who caucuses with Democrats, echoed Kelly, emphasizing that although Clayton is not the perfect candidate, it is time to renew the surveillance tool.
“I’m ready to,” King said when asked if he’d support reauthorization. “We’ve got a DNI in place, and then I’m ready to move forward.”
But other Democrats said they’ll continue to oppose renewing the surveillance program altogether, even under a new intelligence director. Sen. Andy Kim (D-New Jersey), a former State Department adviser, told NOTUS he’s long had problems with FISA –– especially under the Trump administration.
“They made matters worse by bringing in Pulte, and that shook my confidence about what they’re going to do with Clayton or anybody,” Kim said. “It doesn’t redress the underlying problems we had about the role of privacy and the role of the courts.”
Even with enough Democratic support, the Senate may not hold a vote to renew the Foreign Intelligence Surveillance Act until members return in September. The House doesn’t return until the end of August, and the Senate has stacked up a pile of must-pass items before lawmakers depart for their own summer recess.
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