Congress eyes killing controversial surveillance program

Congress eyes killing controversial surveillance program
© Greg Nash

Momentum is growing in Congress to reject the Trump administration’s request to reauthorize a controversial surveillance program.

Lawmakers have until March 15 to reauthorize expiring provisions under the USA Freedom Act, including a controversial phone records program known as Section 215.

The program, initially made public through leaks by former government contractor Edward Snowden, allows the National Security Agency (NSA) to collect metadata on incoming and outgoing calls from a specific number, though it does not allow the NSA to look at the content of the calls.

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Attorney General William BarrWilliam Pelham BarrBarr tells prosecutors to consider coronavirus risk when determining bail: report Decentralized leadership raises questions about Trump coronavirus response Feds distributing masks, other gear seized in price-gouging investigation to NY, NJ health care workers MORE met with Senate Republicans on Tuesday to discuss the law and make the case for a blanket extension. But key chairmen in the House and Senate do not support reauthorizing the call records program, arguing it has been subsequently been made inoperable.

“That would be a tough sell if you don’t use it,” said Senate Judiciary Committee Chairman Lindsey GrahamLindsey Olin GrahamUN biodiversity chief calls for international ban of 'wet markets' Graham asks colleagues to support call for China to close wet markets Justice IG pours fuel on looming fight over FISA court MORE (R-S.C.).

The New York Times reported on Tuesday that Section 215 had cost $100 million between 2015 and 2019 but only in two instances provided information the FBI didn’t already have. That resulted in one investigation. 

This raises the odds that Congress could formally revoke authorization for the call records program while greenlighting an extension of other parts of the surveillance law set to expire.

Sen. John CornynJohn CornynGOP senator: National shelter-in-place order would be an 'overreaction' Lawmakers already planning more coronavirus stimulus after T package Cuban says he'd spank daughter if she was partying during coronavirus pandemic MORE (Texas), a member of GOP leadership and the Senate Intelligence Committee, noted that the “experts” within the intelligence community support ending the call records program.

“I don’t believe that the experts find that call record reauthorization particularly helpful. So I could support reauthorizing the other parts … and not reauthorize that,” he said.

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Cornyn added that he understands Barr and other administration officials want to keep the authority for the program but “I think they can come back to Congress when and if they come up with a better technology solution, and we could consider reauthorizing it then, not now.”

Sens. Richard BurrRichard Mauze BurrCOVID-19 and the coming corruption pandemic Burr says intelligence watchdog should be 'independent' after inspector general firing 2020 on my mind: Democrats have to think like Mitch McConnell MORE (R-N.C.) and Mark WarnerMark Robert WarnerDemocratic senator rips Navy head's 'completely inappropriate' speech on ousted carrier captain Democrats seize on Trump's firing of intelligence community watchdog Trump fires intelligence community watchdog who flagged Ukraine whistleblower complaint MORE (D-Va.) — the chairman and vice chairman of the Intelligence Committee, respectively — have filed legislation that would formally end the call records program while providing an eight-year extension for its other provisions.

Meanwhile, House Democrats on the Intelligence and Judiciary committees unveiled legislation this week that would repeal the NSA’s authority to run the program. That bill is scheduled to get a vote in the Judiciary Committee on Wednesday.

The NSA shuttered the program, arguing that the changes made by the USA Freedom Act, which Congress passed in 2015, made the call records program unworkable. The law changed the bulk collection of metadata by requiring the government to specify an individual or account, a step that narrows the swath of data collected.

Despite this, then-acting Director of National Intelligence Dan CoatsDaniel (Dan) Ray CoatsWe weren't ready for a pandemic — imagine a crippling cyberattack GOP presses for swift Ratcliffe confirmation to intel post Experts report recent increase in Chinese group's cyberattacks MORE last year formally asked Congress to reauthorize Section 215, along with the other provisions, arguing that the intelligence community should retain the authority to restart the program down the road.

Barr, according to GOP senators, urged lawmakers during the private meeting on Tuesday to pass a “clean” reauthorization of all three provisions. Sen. Mike LeeMichael (Mike) Shumway LeeJustice IG pours fuel on looming fight over FISA court Senator Tom Coburn's government oversight legacy Trump on Romney's negative coronavirus test: 'I am so happy I can barely speak' MORE (R-Utah) said in a tweet that he “made a long case against a simple reauthorization” during the closed-door lunch.

But Barr appears to have the backing of Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellFlorida Democrat hits administration over small business loan rollout The Hill's Coronavirus Report: Dybul interview; Boris Johnson update Schumer says nation will 'definitely' need new coronavirus relief bill MORE (R-Ky.), who told reporters on Tuesday that he supports extending the surveillance powers.

“They’re still relevant to our effort to go after terrorists today. ... These tools have been overwhelmingly useful according to our intelligence advisors, and I hope that when the Senate deals with these expiring provisions in a couple of weeks we’ll be able to continue to have them in law,” McConnell told reporters.

McConnell’s support for extending all three parts of the law, however, does not mean the Senate will do so.

The GOP leader did not support the USA Freedom Act in 2015, instead trying to get the Senate to make a blanket reauthorization of the post-9/11 Patriot Act language. But the GOP leader ran into a roadblock as libertarian-minded senators, including Sen. Rand PaulRandal (Rand) Howard PaulGeorgia governor says he didn't know asymptomatic people could spread coronavirus McConnell: Impeachment distracted government from coronavirus threat Warren knocks McConnell for forcing in-person Senate vote amid coronavirus pandemic MORE (R-Ky.), blocked McConnell’s efforts to force through a short-term extension of the Patriot Act provisions.

In the end, the surveillance reform bill passed the Senate with nearly 20 Republican senators supporting it.

Senators stressed that the path forward on the surveillance reauthorization is fluid. Graham has not said if he will give the Burr-Warner bill a vote in committee before the March 15 deadline, saying he needs to discuss the path forward with McConnell.

“We’ve got about 63.7 moving parts and they will eventually come together,” said Sen. John KennedyJohn Neely KennedyMORE (R-La.) “But there’s no way to predict what’s going to happen.”

Lawmakers have 14 working days to get a reauthorization through a divided government, raising the prospect that Congress could need to pass a blanket short-term extension of the surveillance programs, delaying the ending of the call records program until later this year.

“Clock’s ticking,” Warner said, asked if there was enough time to get it done by the March 15 deadline. “I would like to get this in the rearview mirror. ... My hope is it will be sooner than later.”

Some House Republicans, angered over the use of warrants to surveil a former Trump campaign associate, have discussed trying to include changes to the Foreign Intelligence Surveillance Act (FISA) court warrant application process as part of the surveillance debate.

Justice Department inspector general Michael Horowitz found 17 “significant inaccuracies and omissions” in the applications to monitor Trump campaign associate Carter Page, taking particular issue with applications to renew the FISA warrant and chastising the FBI for a lack of satisfactory explanations for those mistakes.

Sen. Ron JohnsonRonald (Ron) Harold JohnsonRemembering Tom Coburn's quiet persistence Coronavirus pushes GOP's Biden-Burisma probe to back burner GOP seeks up to 0 billion to maximize financial help to airlines, other impacted industries MORE (R-Wis.) noted that Horowitz’s report had raised skepticism for him about the larger FISA process, and floated a short-term extension of the surveillance powers so that Congress could fold in a deal on broader FISA changes into the USA Freedom reauthorization.

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“Maybe what we need to do is a short-term reauthorization while we kind of think this whole process through,” Johnson said. “Somebody who has been very supportive of these authorities. When I’m questioning it, that kind of says something.” 

Barr told Republicans during the closed-door caucus lunch that he was planning to use his regulatory powers to make changes to the FISA process, potentially alleviating the need to inject the fight over the Page warrant application into the legislation on the surveillance programs.

“My view of that would be there’s nothing wrong with the law if people tell the truth as it relates to Carter Page,” said Sen. Roy BluntRoy Dean BluntGOP senators begin informal talks on new coronavirus stimulus Five things being discussed for a new coronavirus relief bill Hillicon Valley: Apple rolls out coronavirus screening app, website | Pompeo urged to crack down on coronavirus misinformation from China | Senators push FTC on price gouging | Instacart workers threaten strike MORE (R-Mo.), a member of the Intelligence Committee.

The Senate Judiciary Committee is gearing up for an in-depth probe into the FISA warrant application process and the investigation into 2016 Russian election meddling and the Trump campaign.

“Sen. Graham has a very careful schedule laid out,” Cornyn said. “We shouldn’t try to do that by March the 15th.”