Senate revives surveillance brawl

The Senate is set to revive a fight over a shadowy surveillance court, bringing to a head a months-long stalemate that resulted in the lapse of three intelligence programs. 

The looming debate, which will pit some of President Trump’s biggest allies against one another, comes on the heels of growing questions about the Foreign Intelligence Surveillance Act (FISA) court after the Justice Department inspector general found widespread errors as part of an interim report on warrant applications.

Leadership wants to pass a House-passed bill that pairs a reauthorization of the intelligence programs with some changes to the FISA process.

Senate Majority Leader Mitch McConnell (R-Ky.) will bring the bill to the floor this week and urged his colleagues to pass it “free of amendments that would jeopardize important tools that keep America safe.”

The House bill, which cleared that chamber in March in a 278-136 vote, will “increase transparency in the FISA process and respond to the shameful abuses of 2016 while preserving the toolbox that professionals use to defend us,” McConnell said from the Senate floor late last week. 

The House bill reauthorizes one program dealing with “roving” wiretaps, which track individuals across multiple devices, and a second on surveilling “lone wolf” suspects not connected to a known terrorist group.

It would also reauthorize Section 215, which allows the government to request “tangible things” such as documents relevant to a national security investigation but makes changes including ending a controversial call records program. The three programs expired in mid-March; the Senate passed a short-term extension, but it was not taken up by the House.

Sen. Roy Blunt (R-Mo.), the No. 4 Senate Republican and a member of the Intelligence Committee, said he expected the House bill to pass without changes, which would send it directly to Trump’s desk. 

“I would think that we would be able to pass the House-passed bill,” he said. 

Sen. John Thune (R-D.), the No. 2 Senate Republican, added, “I suspect that in the end, hopefully, the product will be the House bill.” 

But the Senate’s looming debate is filled with pockets of uncertainty.

It’s unclear if Trump will sign the House bill if it reaches his desk as currently drafted. Attorney General William Barr supports the House bill, but Trump told Sen. Mike Lee (R-Utah), an opponent of the House bill, earlier this year that he didn’t, according to a spokesman for the GOP senator.

Trump has been tight-lipped about the bill since then as the country shifted its focus to the coronavirus. 

Sen. Rand Paul (R-Ky.) added that while he isn’t sure what the president will do, he is urging him to veto the House bill if it reaches his desk without changes. 

“We’ll see what happens. But I think it’s an important debate to have, and I will encourage the president to veto it if it still allows Americans to be abused in FISA court,” he said. 

Several senators say they are still undecided on the bill, and both leadership and supporters of additional reforms acknowledge the final vote could be close. 

Thune, asked if he expected each of the amendments would fail, said that “you never know until you have the votes,” quipping that the House bill will pass without changes “if things go well.” 

Lee, who is offering one of the amendments, predicted that the margin on the House bill would depend on the outcome of the amendment fight. 

“If none of the amendments are adopted, I think it gets tougher to pass it,” he said. 

Under a deal struck by leadership, when the Senate takes up the House bill, it will also vote on an amendment from Lee and Sen. Patrick Leahy (D-Vt.), a second from Paul, and a third from Sens. Steve Daines (R-Mont.) and Ron Wyden (D-Ore.), each of which adds more reforms to either the FISA court or the surveillance programs beyond what was included in the House bill. 

The amendment from Paul would prevent FISA warrants from being used against Americans, the Lee-Leahy proposal would strengthen the role of outside advisers, and the Daines-Wyden amendment would prevent law enforcement from obtaining internet browsing and search data history. 

The House bill made some reforms to the FISA court amid pressure from a coalition of libertarian-minded Republicans and progressives in the House, which were melded with growing GOP concerns about the implications of Department of Justice Inspector General Michael Horowitz’s finding of errors within the warrant applications related to former Trump campaign adviser Carter Page.

The reforms include requiring the attorney general to sign off on FISA warrant applications involving elected officials.

Several senators say they are open to further changes and remain undecided on if they would support the House bill without additional reforms. Because each of the amendments is expected to need 60 votes, they are likely to fail. 

“I’m going to support Mike Lee’s amendment. … If it doesn’t pass, if we don’t have an amended version, I’m still undecided,” Sen. Kevin Cramer (R-N.D.) told The Hill. 

Sens. James Lankford (R-Okla.), John Kennedy (R-La.) and Mike Braun (R-Ind.) added that they were also undecided on supporting the House bill. 

“I’ll be voting for both of the Lee and the Paul amendments,” Braun said, adding that he would have to “think about” whether he will vote for the House bill without them. 

Sens. Dick Durbin (D-Ill.) and Chris Murphy (D-Conn.) also indicated they are undecided.

“There are some amendments that have been offered and that will decide my final vote,” Durbin said, indicating that he is supportive of the Lee-Leahy proposal. 

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) is running his own investigation into the FISA process, which supporters of the House bill argue could be a forum for making broader changes to the surveillance court separate from next week’s vote.

Sen. John Cornyn (R-Texas), who is a member of Graham’s committee, said he would support the House bill and that additional changes to the FISA process should go through “regular order.”

Republicans have grown increasingly alarmed about the FISA process in the wake of Horowitz’s finding of errors in the FBI’s handling of warrant applications. Graham has already started holding closed-door depositions with lower-level officials and has said he wants to work his way up to higher-profile targets such as former FBI Director James Comey and former Deputy Attorney General Rod Rosenstein. 

Kennedy, a member of Graham’s committee, said he was undecided on the House bill. 

“I’m looking hard at the amendments. I mean I think we ought to renew the statue, but I’m not convinced we ought to renew the statue without making some necessary changes,” he said.

Kennedy stressed that he wasn’t criticizing Graham but said he had heard for years around Washington that “we’re going to fix the FBI problem.” 

“And we’ve never done it,” he said. “And you don’t get that many opportunities around here to make changes, and this is an opportunity to try to fix it.”