With less than three weeks left before three key surveillance authorities expire, Congress is barreling toward another standoff over an extension.
March 15 will bring the expiration of the three provisions, headlined by Section 215 of the Foreign Intelligence Surveillance Act, which authorizes national security agencies to collect business records.
Attorney General William Barr met with the Senate GOP at their weekly caucus lunch on Tuesday, and senators indicated he argued that Congress should reauthorize with few to no changes and the administration could just make changes it wants by using executive action.
North Dakota Sen. Kevin Cramer, for instance, said Barr expressed satisfaction with a “clean reauthorization” of FISA and “tinkering with it from there.”
Cramer acknowledged that President Donald Trump has been personally critical of the surveillance powers but said Barr gave the impression that the president is on board with changes suggested by Barr.
“My sense is that the president is supportive of the reforms that the attorney general is offering up,” Cramer said.
A House markup is scheduled for Wednesday on a draft overhaul from Judiciary Chairman Jerrold Nadler, a New York Democrat, but House Republicans have already panned that legislation, saying it does not address concerns raised in the Justice Department inspector general report on abuse of the surveillance powers in connection with former Trump adviser Carter Page.
“In order to restore the American people’s faith in our premier law enforcement agency, we must reform FISA to ensure our intelligence community and FBI are deterred from ever wielding their significant power to spy on American citizens,” House Judiciary ranking Republican Doug Collins of Georgia said in a statement. “Democrats’ bill fails to accomplish this goal, and in fact, makes it more difficult to conduct legitimate surveillance against terrorist targets.”
Senate Judiciary Chairman Lindsey Graham of South Carolina told reporters that he was not sure whether his committee would mark up legislation ahead of the middle of March but he was talking to Senate Majority Leader Mitch McConnell about next steps.
“I hope when the Senate deals with these expiring provisions in a couple weeks, we’ll be able to continue to have them in law,” McConnell told reporters Tuesday.
“There are some of our members who have a different point of view about this,” McConnell said. “I personally happen to be among those who think these expiring provisions are important, and I hope we’ll be able to find a bipartisan way to extend them.”
Among those senators with a “different point of view” is McConnell’s Kentucky colleague, Rand Paul.
Paul told CQ Roll Call he would once again strenuously object to extending the surveillance law without further changes.
“A clean extension is a big mistake, and I will oppose with all the fervor I have any kind of clean extension. A clean extension without reform is to look the other way and say we don’t really care what happened to President Trump, the abuse that was laid at his feet by the secret court that’s intended to go after foreigners,” Paul said. “People who look the other way are ignoring what happened to the president.”
Paul said he needed to review what Nadler and other House Democrats were proposing, but his initial read was that “some of their reforms do have some value.”
“I think the main thing, from my perspective, is secret courts shouldn’t be used on Americans. If you have a secret court where you don’t get a lawyer to represent you, that lower standard could be used on foreigners that are potential enemies of the country, but they should never be used on Americans, and I think that’s the big reform that I want to see,” Paul said.
Utah GOP Sen. Mike Lee offered a rebuttal to the idea that Barr could make needed changes through executive action.
“At the Senate GOP lunch today I made a long case against a simple reauthorization of the FISA program. Some are arguing the program needs no reform and that DOJ can put in place internal quality control mechanisms. That’s not good enough,” Lee tweeted, adding that the provision allowing for the government to obtain call detail records should formally end.
During the lunch, Cramer said no one gave Barr a difficult time, including Paul. When asked if the questioning from Paul was friendly, Cramer said, “Very much so. … He’s a teddy bear.”
Paul often finds a kindred spirit when it comes to the National Security Agency in Oregon Democratic Sen. Ron Wyden.
“The real question is whether [the president’s] loyalists are really interested in FISA reform, which includes some of the most current problems like geolocation and browsing history, or is this just some kind of referendum on Carter Page,” Wyden said Tuesday.
“When they first came out for all these reforms, I said, ‘Wow, look at all these new privacy hawks.’ These are all the people who opposed all the bipartisan things I’ve been offering for a decade,” Wyden said.
Sen. Charles E. Grassley, a former chairman of the Judiciary Committee, anticipated there would be an extension, but he left the timeline up to his successor as Judiciary chairman.
“Whatever Graham says it takes to get the legislation done,” the Iowa Republican told reporters when asked about the timeline.
“I do think there needs to be some changes to FISA, but you can’t do that between now and March 15,” Grassley said.
Sen. John Cornyn, who sits on both the Judiciary and Intelligence committees, said likewise.
“We’re not going to shoehorn a bunch of other unrelated things into the 215 extension,” the Texas Republican said. “We’re going to do that over a period of perhaps months, where the Judiciary Committee considers hearing from all the witnesses, to see what needs to be fixed.”
Barr’s appearance came after the attorney general found himself speaking out publicly against the president’s habit of tweeting about ongoing criminal matters.
McConnell also emphasized that Barr has the backing of the Senate GOP.
“He enjoys overwhelming support in our conference,” the majority leader said.
Katherine Tully-McManus contributed to this report.