Attorney General William Barr lunched with Senate Republicans at the Capitol last week. According to Senate Majority Leader Mitch McConnell, R-Ky., there was nary a syllable of conversation about a cloud of issues hovering over the Department of Justice.
McConnell said there was nothing about perceived duress inside the Justice Department. No questions about how prosecutors handled high-profile cases. Silence regarding alleged pressure from President Trump. Whether or not the president’s Twitter feed undercut Barr’s independence. Pardons. Reticence about if Barr would resign.
“He enjoys overwhelming support in our conference,” boasted McConnell of Barr. “We all think he’s doing an outstanding job.”
Instead, Barr and Senate Republicans discussed FISA – the Foreign Intelligence Intelligence Surveillance Act. The program dates back to the mid-1970s. The measure allows the government to wiretap and electronically skim information between foreign entities and those inside the U.S. in order to combat terrorism. Congress approved the Patriot Act after 9/11, substantially amending the FISA program.
But now, FISA is up for renewal on March 15. Republicans and the Trump administration have a challenge in front of them. They routinely express concern about FISA and domestic intelligence after the process ran amuck during the 2016 presidential campaign. Yet many lawmakers from both parties are worried about renewing the program to protect the nation. Civil libertarians and privacy advocates contend FISA awards too much power to the government. A report late last year by Justice Department Inspector General Michael Horowitz bore that out. Horowitz explored how a broad FISA warrant focused on former Trump campaign aide Carter Page. Barr and FBI Director Christopher Wray argue the FISA program wasn’t designed to target someone like Page – but did.
That’s why Barr faces the unenviable task of selling the merits of the program when he met with some skeptical Senate GOPers.
“His reason for coming up today was that we have these expiring intelligence provisions. Some of them have generated some degree of bipartisan controversy in the past. The attorney general just wanted to underscore, again, the importance of these provisions that were enacted in the wake of the 9/11 attack,” said McConnell.
Many in the intelligence community argue the nation is vulnerable to a 9/11-style terrorist attack if the program ends. Yet there are reservations about FISA. A coalition of libertarian-minded Democrats and Republicans nearly killed the USA Freedom Act in 2015. There were concerns about bulk collection of data, phone records and “mass surveillance” authorized under both FISA and the Patriot Act. That made it tough to assemble the right cocktail of Democrats and Republicans to re-up those programs five years ago.
The Trump administration could have a tough task selling the merits of FISA to skeptical lawmakers, especially with the lack of a permanent, Senate-confirmed Director of National Intelligence to make the case. Trump just announced he was again tapping Rep. John Ratcliffe, R-Texas, to become DNI. But the Senate certainly won’t confirm Ratcliffe that quickly. And, administration officials may find the hardest sell of all isn’t to members of Congress. It’s to President Trump himself.
This comes as Congress is preparing a $7.5-8 billion supplemental spending bill to combat the coronavirus. The plan is to advance the package through the House and Senate this week. But there was chatter last week about the urgency to approve the FISA renewal – and perhaps latch it to the emergency spending package. After all, that’s the train leaving the station. In fact, House Speaker Nancy Pelosi, D-Calif., notes that the true deadline for FISA is March 12 – a Thursday. March 15 is a Sunday. Congress would disappear for the weekend on the 12th.
A senior Republican leadership source suggested that mixing the two was not tenable.
When asked about hooking an interim FISA extension to the coronavirus measure, Sen. Patrick Leahy, D-Vt., the top Democrat on the Senate Appropriations panel, exclaimed “Oh, God, no!” Leahy noted he wanted a “clean” coronavirus bill.
“The people who want to do FISA could have finished it last year,” added Leahy.
But Senate Appropriations Committee Chairman Richard Shelby, R-Ala., on Monday didn’t close the door on the idea of attaching a FISA renewal to the coronavirus spending bill, saying it wouldn’t be a poison pill.
“It’s not a poison pill if it moves,” he said.
As Leahy spoke just outside the doors leading to the Senate chamber, Sen. Mike Lee, R-Utah, one of the most libertarian-minded lawmakers on either side of the Capitol, passed by a clutch of reporters and briefly chanted “Kill FISA! Kill FISA!”
A Republican source with ties to the White House dismissed the concept of linking a must-pass piece of legislation, the coronavirus supplemental bill, with FISA.
“If they do that, we’ll blow it up,” said the source.
When asked if he was in favor of attaching a FISA extension to the coronavirus measure, House Judiciary Committee Chairman Jerry Nadler, D-N.Y., replied, “We shouldn’t.”
Nadler’s panel canceled a markup session to prepare a new FISA bill last week over disagreements about amendments. Nadler wouldn’t commit to when he would reschedule the markup, but added, “It’s got to be soon.”
Nadler was still confident that Congress could tackle an overall FISA reauthorization plan – and not just a stopgap – before the mid-March deadline.
“I do not want to do an extension,” said Nadler. “We need major reforms”
Nadler says they shouldn’t be “trying to tie anything to the coronavirus” supplemental spending bill, such as an interim extension of FISA.
When asked if he was concerned that the House could be jammed by the Senate with a FISA reform bill, Nadler replied “yep.”
Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., said he would speak to Trump about FISA this weekend.
“I don’t see us being able to do it before March 15,” said Graham.
Republicans and some Democrats on both sides of the Capitol advocate major reforms to FISA after alleged abuses of the program in the 2016 campaign for warrants and, generally, other surveillance concerns.
“Metadata will be out,” said House Majority Leader Steny Hoyer, D-Md., referring to the practice which sweeps up the records of virtually every phone call ever made.
Hoyer is working with House Minority Leader Kevin McCarthy, R-Calif., to forge a FISA reform package palatable to both sides. But some Republicans believe Democrats simply want to renew FISA the way it is.
“They want a cover-up,” said one senior House Republican who asked they not be identified. “They don’t want any changes.”
Republicans, disturbed by how the government used FISA in the 2016 campaign, are seeking three main reforms:
1) A mandate that the government generate a transcript of all super-secret FISA court hearings.
2) Criminal penalties for those who are convicted of abusing the FISA process for political reasons.
3) The authorization of an “advocate” who would work alongside those facing surveillance in a FISA court.
In short, this is why Senate Republicans didn’t discuss anything except FISA with Barr last week.
“That's what dominated the discussion of the lengthy discussion,” said McConnell, “Because there are some of our members who have a different point of view about this.”
And there may be so many different points of view that could stymie Congress from meeting the mid-month deadline.