Congress braces for potential surveillance debacle after Barr briefing

Attorney General William Barr told Senate Republicans on Tuesday that the Trump administration could support a clean extension of contentious surveillance laws set to expire next month. And Barr said he could make changes on his own to satisfy President Donald Trump and his allies who have railed against the use of the law to monitor his 2016 campaign, according to senators at a party briefing.

But Barr also clashed with GOP critics of the Foreign Intelligence Surveillance Act, which has three key provisions set to lapse on March 15. And with House Democrats eyeing their own changes to the law, some Senate Republicans fear a deal to extend the law might be nearly impossible.

Republicans emerged from the lunch meeting mostly supportive of a clean extension of the law to avoid a gap; doing so is a top priority of Senate Majority Leader Mitch McConnell (R-Ky.).

“The attorney general just wanted to underscore again the importance of these provisions that were enacted in the wake of the 9/11 attack. They’re still relevant to our effort to go after terrorists today like they were after 9/11,” McConnell told reporters.

Senate Majority Leader Mitch McConnell, R-Ky., joined by the GOP leadership, speaks to reporters just after meeting with Attorney General William Barr to discuss expiring provisions of the Foreign Intelligence Surveillance Act and other government intelligence laws, on Capitol Hill in Washington, Tuesday, Feb. 25, 2020. (AP Photo/J. Scott Applewhite)

But Barr also sparred with skeptics, primarily libertarian-leaning Sens. Mike Lee of Utah and Rand Paul of Kentucky, according to two people familiar with the meeting. Barr told Lee his criticisms of surveillance law are dangerous, while Paul said Americans shouldn’t be subject to secret FISA courts, one of the people said.

Lee followed up the lunch by tweeting a lengthy rebuttal to Barr’s arguments in the caucus meeting.

“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 said.

Lee also called for ending the call-records program and requiring more evidence for the government to conduct surveillance.

“Not everyone is in agreement that we should just leave it alone,” said an attendee at the lunch.

That comment extends across the Capitol, where House Democrats are pushing their own version of FISA reforms. On Wednesday, House Judiciary Chairman Jerry Nadler (D-N.Y.) will begin advancing a reauthorization that would end the seizure of call records and extend roving wiretap and lone wolf surveillance authorities with some reforms.

Senate Republicans and Barr are unlikely to accept those changes anytime soon. And those dynamics have some fretting the programs will briefly expire, just as they did in 2015 when Paul and McConnell clashed over reforming the much-criticized bulk data collection program.

“I don’t even know if we’re going to do an extension. I think this is the beginning of the conversation. I’m not sure. Letting it lapse and then revisit it? I don’t know,” said Sen. Shelley Moore Capito (R-W.Va.). A brief expiration of the law is “possible. I think that’s probably what’s going to happen.”

Senate Republicans prefer kicking a broad FISA debate to as late as 2022, when other pieces of the law expire. In the interim, Barr would make administrative changes to address complaints from conservatives that surveillance authorities were abused during Trump’s campaign — something the president continues to seethe over.

“You’ve got three provisions to deal with. I think it’d be smart to keep them in place. It would give us some time to work on FISA writ large, we’ve got three years,” said Senate Judiciary Chairman Lindsey Graham (R-S.C.), who is preparing hearings on FISA.

Sen. Lindsey Graham, R-S.C., left, speaks during the Women's Global Development and Prosperity Initiative one-year anniversary event event co-hosted by Secretary of State Mike Pompeo and Senior Advisor to the President, Ivanka Trump, at the State Department in Washington, Wednesday, Feb. 12, 2020. A Republican and a Democratic senator are leading a legislative effort to have a global women's economic initiative spearheaded by President Donald Trump's daughter Ivanka written into law. The senior White House adviser made the announcement Wednesday during a State Department anniversary event for her Women's Global Development and Prosperity Initiative. (AP Photo/Luis M. Alvarez)

Barr “indicated his desire to do whatever he can to prevent the corruption and the abuses that we saw in the Crossfire Hurricane,” said Sen. John Cornyn (R-Texas), referring to the counterintelligence investigation of the Trump campaign. “We’re not going to shoehorn a bunch of other unrelated things” into an extension before the March 15 deadline.

But a clean extension would be no layup in the House, where progressives are eager to finally snuff out the collection of call records and metadata after more modest reforms ultimately passed in 2015 over McConnell’s objections.

The possibility of swallowing a clean extension is something senior Democrats have only just started to seriously discuss in recent days, according to Democratic aides. And with the House not back from recess until Wednesday, Democratic leaders have been unable to take the temperature of the caucus.

There’s internal politics on both sides to contend with: a clean extension would likely be opposed by liberal Democrats and potentially even some Republicans, all of whom have been advocating for overhauling the current law in various ways.

And now Republicans have whiplash over the mixed messages about what the president wants — from a Wall Street Journal report over the weekend detailing White House hopes to completely overhaul the program to Barr saying Tuesday those reforms could be achieved administratively.

The House legislation also contains provisions generally supported by members of both parties, including repealing the controversial cellphone metadata program and reforming the FISA court. House Majority Leader Steny Hoyer (D-Md.) wrote to colleagues this month to say that he hopes “to bring a reauthorization to the floor during this work period” after the bill clears committee.

But privately, Republicans are reluctant to support a measure Trump could publicly reject at any moment. And GOP lawmakers like House Judiciary ranking member Doug Collins of Georgia have panned the proposal, saying it does nothing to address the FISA abuses related to Trump campaign aide Carter Page that were outlined in a December report from Justice Department Inspector General Michael Horowitz.

Given those dynamics, fears are rising that nothing will happen at all before Congress goes on another recess on March 13. As Sen. Rick Scott (R-Fla.) observed dryly: “Things aren’t happening very fast up here.”

“A lot will happen between now and March 15. We may do a placeholder and take it past March 15. We’ve got to get this right,” said Sen. John Kennedy (R-La.). “Anybody who reads the Horowitz report on misfire hurricane will understand what I’m talking about.”

Marianne LeVine contributed to this report.