Congress set for clash over surveillance reforms

Congress is gearing up for a high-profile fight over reauthorizing a handful of controversial surveillance programs months before the 2020 elections.

After punting late last year to give themselves more time to negotiate, lawmakers now have 15 working days to figure out whether and how to reauthorize expiring provisions of the USA Freedom Act by the March 15 deadline. 

The policy battle comes as tensions are already running high in Washington after a weeks-long fight emanating from the Justice Department — which will also be at the center of the surveillance discussion — and with the November elections injecting a higher dose of politics into any discussion involving Congress and President Trump. 

Attorney General William Barr will meet with Senate Republicans during a closed-door policy lunch on Tuesday, his first face-to-face with most senators since the controversy over the department’s handling of the case involving Trump associate Roger Stone. 

But two sources confirmed to The Hill that the lunch was planned weeks before the current flare-up between the Justice Department and the White House. The topic, according to the two sources, is expected to be expiring surveillance provisions. 

“Reauthorization of these certain programs is a priority for both Leader McConnell and AG Barr,” a source said, referring to Senate Majority Leader Mitch McConnell (R-Ky.). 

Among the expiring provisions that Congress needs to make decisions on is a controversial records program, known as Section 215, that gathered metadata on domestic text messages and phone calls. 

They’ll also need to make decisions on two other provisions — one authorizing “roving” wiretaps and the other on lone wolf surveillance authority. 

The biggest sticking point will be the metadata program that will put a spotlight on divisions between privacy hawks and leadership, the House and Senate, and even GOP lawmakers and the White House.

Though the National Security Agency (NSA) shuttered the program and advised the White House to officially end it, then-Director of National Intelligence Dan Coats urged Congress to reauthorize it. Barr is expected to stick with that position when he speaks with senators.

Coats noted that the NSA had suspended the program and deleted call records, saying the decision was made after “balancing the program’s relative intelligence value, associated costs, and compliance and data integrity concerns.”

“However, as technology changes, our adversaries’ tradecraft and communications habits will continue to evolve and adapt,” he added. “In light of this dynamic environment, the Administration supports reauthorization of this provision.”

But Sens. Richard Burr (R-N.C.) and Mark Warner (D-Va.), respectively the chairman and vice chairman of the Senate Intelligence Committee, quietly introduced legislation that would end the phone metadata program — going against the administration’s request. 

In addition to terminating that program as soon as the bill is enacted, it would provide an eight-year reauthorization of the other two programs. 

The bill was sent to the Senate Judiciary Committee, where Chairman Lindsey Graham (R-S.C.) has described himself as “torn” on whether to reauthorize Section 215.

A Democratic aide, asked if they had gotten guidance on if Judiciary or leadership would move the Burr-Warner bill in committee or on the floor by March 15, told The Hill: “Not really.” 

The panel includes privacy hawks like Sen. Mike Lee (R-Utah). Lee and Leahy are working on reforms related to the Foreign Intelligence Surveillance Act (FISA). A spokesman for Lee said that “ideally” their forthcoming ideas could be included as part of the debate over reauthorizing the USA Freedom provisions. 

Surveillance debates have spotlighted fierce clashes among Senate Republicans in recent years. 

When the Senate debated the USA Freedom Act, and the Patriot Act measures that pre-dated it, in 2015, Sen. Rand Paul (R-Ky.) used the chamber’s procedural levers to force a brief lapse of the surveillance programs. 

He also successfully blocked multiple efforts by McConnell to clear a short-term extension of the Patriot Act, a tactic Paul quickly used to rack in fundraising cash for his 2016 presidential bid. McConnell has not yet taken a public position on the upcoming USA Freedom debate, something he’s likely to be quizzed on after Tuesday’s lunch. 

As Republicans are set to meet with Barr, the House Judiciary Committee has put reauthorization of the USA Freedom provisions on its business meeting agenda for Wednesday. 

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) hasn’t yet unveiled what the committee will be voting on, and spokesmen didn’t respond to multiple requests for comment. But a House Intelligence Committee aide noted that staff on the two panels are continuing to work on potential legislation. 

The aide declined to say if the forthcoming legislation would end the metadata program, even as leadership is under pressure from progressives to take a hard line. 

Twenty House progressives sent a letter to Nadler last year warning that they would oppose a reauthorization measure that does not completely repeal the call records program and also called for additional civil liberties protections to be built into the law. 

“Any meaningful reform must repeal the [call detail records] program, which is an unnecessary violation of the rights of people in the United States and a threat to our democracy,” the lawmakers wrote. 

Further complicating calculations for passing a bill in roughly two weeks, some Republicans are saying they want to use the reauthorization debate to work in changes to the Foreign Intelligence Surveillance Act (FISA) court. 

The court, authorized under the Foreign Intelligence Surveillance Act of 1978, is made up of 11 judges who serve seven-year terms and are selected by the chief justice of the Supreme Court. The judges are responsible for signing off on or rejecting warrant applications submitted as part of intelligence gathering and national security operations.

The court jumped into the spotlight late last year when Justice Department Inspector General Michael Horowitz found a total of 17 “significant inaccuracies and omissions” in the applications to monitor Trump campaign aide Carter Page, taking particular issue with applications to renew the FISA warrant and chastising the FBI for a lack of satisfactory explanations for those mistakes.

Reps. Doug Collins (R-Ga.) and Devin Nunes (R-Calif.) — the top Republicans on the House Judiciary and Intelligence committees, respectively — sent a letter to Nadler over the recess pitching the USA Freedom debate as a vehicle for making FISA changes.

“Any legislation devoid of necessary reforms to address the abuse of the intelligence community against a presidential campaign and even our sitting president, including lies and fraud engaged in by top-level FBI officials, misses that mark,” they wrote. 

There have been bipartisan calls for FISA reforms after the Horowitz report, but inserting it into the middle of the surveillance debate could inject another political angle into what will already be a contentious debate. 

But Collins and Nunes argued that FISA reforms should be a bipartisan “line in the sand” and urged Nadler to “not ignore historic abuses directed against the campaign of a president you don’t support.”