Durbin squares off against Biden administration on spy powers amendment

It’s not often the Senate whip finds himself at odds with his own party’s administration, yet the controversial surveillance bill has prompted that exact split — with only hours left until the law expires.

The Biden administration is moving to crush an amendment from Senate Majority Whip Dick Durbin (D-Ill.) that would prohibit access to American communications without a warrant. Durbin said this week that he will not be able to support reauthorizing the Foreign Intelligence Surveillance Act’s Section 702 program, which allows warrantless surveillance of foreign targets, without changes. The program incidentally sweeps up information from Americans, which has worried privacy advocates in both parties for years.

Durbin’s amendment continues the long-running debate in the House, which discussed before passing the bill last week whether to require a warrant for accessing American communications. Lawmakers in that chamber barely defeated a similar amendment, with Speaker Mike Johnson providing the decisive vote to block it. The intelligence community has repeatedly argued that increasing warrant requirements could imperil national security.

No stranger to skepticism of surveillance programs, Durbin said his amendment would be “narrower” because it focuses on a smaller number of situations. He estimated on Friday afternoon that it would result in "80 requests for warrants in a month out of millions of inquiries. That doesn't sound like a crippling amendment to me."

"Any change that's suggested is always treated by every administration the same way: It's the end of the 702 program," Durbin said. "We've found a way to make it as reasonable as possible and still they think it's too much."

The amendment from the Illinois Democrat and Sen. Kevin Cramer (R-N.D.) would need just a simple majority to get adopted. Cramer said the high probability that several amendments might pass is holding up a deal to speed up votes and consider amendments.

"What really offends me is that they don't let us vote on anything that might pass," Cramer said of the impasse. "The big excuse that they use is, if we pass something with an amendment it has to go back to the House and then it's midnight tonight and the world ends."

Amending the measure is a significant concern for leadership, since changing the surveillance bill would mean sending it back to an uncertain fate in the House and almost certainly result in a program lapse. So the administration is moving swiftly to stop Durbin and Cramer's amendment was well as a bipartisan amendment stripping language that changes which data providers are subject to the program.

In a statement, Assistant Attorney General Matthew Olsen called Durbin’s amendment a “flat-out prohibition on our ability to use U.S. person queries to disrupt threats and protect Americans."

“It is also not a ‘compromise.’ It’s an extreme proposal that cripples the value of Section 702, especially in protecting Americans from lethal plotting, hacking, recruitment as spies, and more,” Olsen said.

The administration dispatched National Security Adviser Jake Sullivan to Capitol Hill to urge quick passage of the reauthorization. And several other top officials, such as Director of National Intelligence Avril Haines, CIA Director Bill Burns and Attorney General Merrick Garland, are talking to senators.

As of Friday afternoon, the Senate had not yet clinched a deal to vote on the legislation before that expiration, a pact which will require agreement from all 100 senators. Durbin's amendment is just one of several that may get a vote Friday.

Sen. Susan Collins (R-Maine) said an amendment agreement is "going extraordinarily slowly" and Senate Republicans discussed on Friday how important it was to avoid even a brief lapse of the program.

Jennifer Haberkorn contributed to this report.