With just a few days left until the law expires, negotiators for House Democrats and Republicans have struck a deal with the White House to renew the Foreign Intelligence Surveillance Act. The give-and-take left out the Senate, however, which makes its fate this week unclear even if the bill passes in the lower chamber. And a freshly-issued opposition from the House Freedom Caucus makes a Senate fight more likely rather than less.
A last-minute set of changes proposed by Attorney General William Barr finally broke the House logjam, Politico reports:
The contours of a deal started to come together in recent days, even as Congress has been grappling with how to respond to the coronavirus outbreak.
And after meeting with Attorney General William Barr in the Capitol Monday night, House Republicans sent the Democrats a counteroffer Tuesday morning that included a list of proposed changes. McCarthy huddled with his Democratic counterpart, House Majority Leader Steny Hoyer (Md.), to discuss the agreement on the floor Tuesday afternoon.
“They’re just finishing up. I feel like we’re there,” McCarthy said outside the House chamber. “I just talked with Steny and staff. I think we’re about there. Just have to confirm everywhere.” …
But the agreement could be thwarted by Senate Republicans or President Donald Trump, who has demanded significant changes to the surveillance programs. Senate Majority Leader Mitch McConnell (R-Ky.) has sought to protect the expiring FISA provisions.
Lawmakers had demanded changes after the Carter Page fiasco, with members on both sides warning that the current law didn’t have enough accountability. Donald Trump promised to veto any attempt to renew FISA in its current form, but left the details of reform to legislative leaders to negotiate. In the end, Barr’s successful intervention will likely mean Trump won’t veto the bill in this form, although Trump has not always acted in predictable ways when it comes to bipartisan legislative action.
What reforms does the bill contain? Attempts to get FISA warrants on an election campaign will no longer be a call contained at the FBI, for one thing:
It mandates that the attorney general must approve in writing of an investigation if the target of electronic surveillance or a physical search is an elected federal official or a candidate. That provision is in line with a policy Attorney General William Barr has instituted in the Justice Department.
It also tasks an oversight board with scrutinizing the impact of Foreign Intelligence Surveillance Act authorities and powers on First Amendment activities and the extent to which decisions are made on the basis of race, religion and ethnicity.
In addition, the bill is meant to shore up the accuracy of the applications that the Justice Department submits to the secretive FISA court when it wants to eavesdrop on American soil on people it believes it are agents of a foreign power. It would require the FBI and other agencies that submit applications to the FISA court to appoint officers to ensure that the law is being complied with, and it would mandate that anyone responsible for FISA applications certify that the Justice Department has been provided with any and all information that could undercut the premise of the application or raise doubts about its accuracy.
In a preview of the fight to come in the Senate, the House Freedom Caucus issued a statement opposing the bill this morning. They call the reforms “insufficient,” especially since no one’s been charged with a crime under the old standard for the serial misrepresentations in the Page surveillance warrant (via e-mail):
As Congress considers reauthorizing FISA, anything short of significant and substantive reforms would betray the trust of the American people. The House Freedom Caucus will oppose any bill that does not meet a Constitutional standard for the protections of American citizens’ rights. We will also oppose any ‘clean’, short-term reauthorization of the current, harmful version of FISA.
Enhanced penalties for abusing the system and additional layers of certification from the Department of Justice and the FBI are insufficient to gain our support, particularly when, to date, no one has been charged with a crime for previous abuses. A proposal for additional scrutiny when elected officials and candidates are the target of investigations similarly misses the point: politicians don’t need more protection from government spying than their fellow citizens. More fundamental changes to standards of evidence and process that mirror as closely as possible our Article III courts are needed to gain our support.
Rep. Jim Jordan, however, came out in support of the new bill:
Jordan, who has been a fierce defender of the President and critic of the FISA process, said that the measure “represents real reform” of the FISA process.
Jordan said the law will require the attorney general to sign off on FISA applications on elected officials and federal candidates, allow independent monitors to review applications, makes it a crime to lie to the FISA court, requires transcripts of court hearings and allows the House and Senate Intelligence Committee to review FISA applications and materials.
“This is definitely better than where we are with current law,” Jordan said.
Where does this leave the bill in the Senate? Mitch McConnell has made it clear that he wants FISA renewed before its expiration on Sunday, but time is running short. Even if the House managed to pass it tomorrow, there might not be enough time to hold debate and allow for amendments in the upper chamber to get to a vote on Saturday.
That assumes a relatively cooperative Senate, too, which seems like a large assumption after the Freedom Caucus statement. One Senator can stop the whole works, at least for a while, which the Freedom Caucus simply doesn’t have the strength to accomplish in the House. What are the odds that Rand Paul and Mike Lee won’t demand an entirely new set of negotiations?
Not good, actually, not good at all:
“I will be putting forward an amendment that says FISA shouldn’t be used on Americans and we’ll see where that goes,” Paul said, adding he hadn’t made any decisions yet on whether to filibuster the measure.
“So far, I have not seen anything that would satisfy me,” GOP Sen. Mike Lee of Utah, another FISA opponent, said earlier Tuesday. “I think we need very aggressive, substantive reform.”
The failure to hold anyone criminally liable for the falsehoods in the Page warrant may end up being the backbreaker on this effort. What good are reforms when there is no political will to enforce accountability? The FISA law is a key tool in the FBI’s efforts for counter-espionage and counter-terrorism, but if they can’t be trusted to use it legally — and the system can’t be trusted to punish them when they don’t — then there’s a legitimate question as to whether it’s worse in the long run to let it expire. It almost certainly will be worse, only it might take a disaster to prove it, by which time a renewal will be a little late in coming. But it’s tough to credit this program after such discreditable use of it ended up producing nothing more than a tongue-lashing from a duped judge.