WASHINGTON, D.C. – Surveillance authorities used by the FBI to fight terrorism are in danger of lapsing next month as both Democrats and Republicans concerned about government overreach negotiate possible reforms.
Liberal Democrats and conservative Republicans want to overhaul the surveillance powers to ensure that the U.S. doesn’t unfairly target private citizens. And Republicans angry over the FBI’s investigation into President Donald Trump’s campaign and Russia want to use the looming March 15 deadline to force their own changes.
The biggest unknown is Trump himself. Some Republicans are privately pushing the president — long suspicious of the nation’s intelligence community — to demand immediate reforms.
While Senate Majority Leader Mitch McConnell, R-Ky., and House Speaker Nancy Pelosi, D-Calif., have both said they don’t want the surveillance authorities to expire, each has to overcome significant rifts within their caucuses to move forward.
“It’s a work in progress and it’s a critically important issue, but one we should try to resolve in a manner that results in substantial reform and is done in a bipartisan way to ensure that it gets over the finish line,” said Rep. Hakeem Jeffries, D-N.Y.
Attorney General William Barr is pushing Congress to quickly renew the surveillance tools, calling them essential for law enforcement.
Barr and some other Republicans have suggested renewing the powers and letting the Justice Department work on changes to the programs that wouldn't require congressional approval. Lawmakers would also have more time to work on reform legislation. But it’s unclear if Trump will go along.
Jeffries, a member of the House Judiciary Committee and also party leadership, said it’s an “open question” if they’ll be able to reach an accord, “but people are working feverishly.”
At issue are three surveillance provisions, including one that permits the FBI to obtain court orders to collect business records on subjects in national security investigations. Another, known as the “roving wiretap” provision, permits surveillance on subjects even after they’ve changed phones; and to monitor subjects who don’t have ties to international terrorism organizations.
The FBI calls the provisions vital in the fight against terrorism and stresses that none are tied to the surveillance problems identified by the Justice Department inspector general during the Russia investigation. The inspector general said in a report last year that the FBI made serious mistakes and omissions during four applications to eavesdrop on former Trump campaign adviser Carter Page, including omitting information that did not support their suspicions that Page was an asset of a foreign government.
The FBI has since committed to a series of reforms aimed at ensuring that wiretap applications to the secretive Foreign Intelligence Surveillance Court are more accurate and thorough.
But the concerns over the Russia investigation, amplified by Trump, have given leverage to those members of Congress in both parties who see a window to push for more oversight of government surveillance.
Democrats concerned about civil liberties are agitating for changes. In the House, Democratic Rep. Zoe Lofgren has so far thwarted the House Judiciary Committee’s compromise bill on the surveillance provisions by saying she'll offer a series of amendments backed by some of the panel’s more liberal Democrats. House Judiciary Committee Chairman Jerrold Nadler canceled the vote rather than allow Democrats to argue in public over the provisions.
Lofgren would not reveal her amendments but has pushed to prohibit warrantless collection of web browsing data and strengthen oversight of surveillance measures she and other Democrats say are overreach.
Nadler’s bill, written with House Intelligence Committee Chairman Adam Schiff, makes similar, but more modest, changes in an effort to ensure passage. Nadler said Friday that he is opposed to a short-term extension similar to what is being floated by some Senate Republicans. But he said that he and Lofgren are still “quite far” apart about a solution.
Nadler said he is involved in the leadership talks to build a package, but that it would first be considered in his committee.
The GOP leader, Rep. Kevin McCarthy of California, said he spoke Friday morning with Barr, and has also spoken recently to Trump, about a package of reforms. McCarthy expressed optimism that the authorities wouldn’t expire and said he is working on the details with House Majority Leader Steny Hoyer, D-Md.
“We’re working on it now, we should be able to get it done by next week,” McCarthy said.
In the Senate, though, Republican Sen. Rand Paul of Kentucky, a longtime skeptic of surveillance laws, has been pushing Trump not to accept a renewal unless the surveillance is curbed.
“Spoke with @realDonaldTrump,” Paul tweeted Thursday. “He agrees that the secret FISA court (intended to be used on foreign spies) should be forbidden from ever spying on or investigating Americans, and that Congress should act NOW to make sure of that!”
Trump has not said whether he believes such reforms should happen now, or later. If he does demand immediate changes, he would be breaking with Barr, who urged quick renewal when he met with Senate Republicans Tuesday.
After that meeting, Paul said a simple extension would be “a big mistake.”
“The time is right, the iron is hot,” Paul said.
Rep. Jim Jordan of Ohio, a Republican member of the House Judiciary Committee, agreed, saying that they are “looking for some reforms that will protect the interests of citizens, American citizens, in front of the FISA court, and make sure what happened to the president doesn’t happen again.”
While surveillance authorities have long had bipartisan support, there is concern on Capitol Hill that the two sides won’t be able to find common ground. Many are still nursing the wounds of impeachment, and the divisions on intelligence issues are deep.
“This is the first time I am aware of anything being so highly politicized” with regard to the FISA process, said David Gomez, a retired FBI counterterrorism supervisor.
“You’ve got a lot of very conservative Republicans who don’t want to see it change too radically but they don’t want to get crosswise with the president,” Gomez said.