Senate revives surveillance brawl

The Senate is set to revive a fight over a shadowy surveillance court, bringing to a head a months-long stalemate that resulted in the lapse of three intelligence programs. 

The looming debate, which will pit some of President TrumpDonald TrumpSchumer: Impeachment trial will be quick, doesn't need a lot of witnesses Nurse to be tapped by Biden as acting surgeon general: report Schumer calls for Biden to declare climate emergency MORE’s biggest allies against one another, comes on the heels of growing questions about the Foreign Intelligence Surveillance Act (FISA) court after the Justice Department inspector general found widespread errors as part of an interim report on warrant applications.

Leadership wants to pass a House-passed bill that pairs a reauthorization of the intelligence programs with some changes to the FISA process.


Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellSchumer: Impeachment trial will be quick, doesn't need a lot of witnesses McConnell: Power-sharing deal can proceed after Manchin, Sinema back filibuster Budowsky: A Biden-McConnell state of emergency summit MORE (R-Ky.) will bring the bill to the floor this week and urged his colleagues to pass it “free of amendments that would jeopardize important tools that keep America safe.”

The House bill, which cleared that chamber in March in a 278-136 vote, will “increase transparency in the FISA process and respond to the shameful abuses of 2016 while preserving the toolbox that professionals use to defend us,” McConnell said from the Senate floor late last week. 

The House bill reauthorizes one program dealing with “roving” wiretaps, which track individuals across multiple devices, and a second on surveilling “lone wolf” suspects not connected to a known terrorist group.

It would also reauthorize Section 215, which allows the government to request “tangible things” such as documents relevant to a national security investigation but makes changes including ending a controversial call records program. The three programs expired in mid-March; the Senate passed a short-term extension, but it was not taken up by the House.

Sen. Roy BluntRoy Dean BluntTrump, allies raise pressure on Senate GOP ahead of impeachment This week: Senate stuck in limbo Skepticism reigns as Biden, McConnell begin new era MORE (R-Mo.), the No. 4 Senate Republican and a member of the Intelligence Committee, said he expected the House bill to pass without changes, which would send it directly to Trump’s desk. 

“I would think that we would be able to pass the House-passed bill,” he said. 


Sen. John ThuneJohn Randolph ThuneTrump, allies raise pressure on Senate GOP ahead of impeachment The Hill's Morning Report - Biden's crisis agenda hits headwinds Senate chaos threatens to slow Biden's agenda MORE (R-D.), the No. 2 Senate Republican, added, “I suspect that in the end, hopefully, the product will be the House bill.” 

But the Senate’s looming debate is filled with pockets of uncertainty.

It’s unclear if Trump will sign the House bill if it reaches his desk as currently drafted. Attorney General William BarrBill BarrPoll finds 1 in 3 believe false claims voter fraud led to Biden win Trump pressed DOJ to go to Supreme Court in bid to overturn election: report Budowsky: Democracy won, Trump lost, President Biden inaugurated MORE supports the House bill, but Trump told Sen. Mike LeeMichael (Mike) Shumway LeeOvernight Defense: Austin takes helm at Pentagon | COVID-19 briefing part of Day 1 agenda | Outrage over images of National Guard troops in parking garage Austin sworn in as nation's first Black Pentagon chief The Hill's 12:30 Report: Next steps in the Trump impeachment MORE (R-Utah), an opponent of the House bill, earlier this year that he didn’t, according to a spokesman for the GOP senator.

Trump has been tight-lipped about the bill since then as the country shifted its focus to the coronavirus. 

Sen. Rand PaulRandal (Rand) Howard PaulSenate to vote Tuesday on Biden's secretary of State pick Leahy, not Roberts, to preside over impeachment trial Sunday shows preview: All eyes on Biden administration to tackle coronavirus MORE (R-Ky.) added that while he isn’t sure what the president will do, he is urging him to veto the House bill if it reaches his desk without changes. 

“We'll see what happens. But I think it's an important debate to have, and I will encourage the president to veto it if it still allows Americans to be abused in FISA court,” he said. 

Several senators say they are still undecided on the bill, and both leadership and supporters of additional reforms acknowledge the final vote could be close. 

Thune, asked if he expected each of the amendments would fail, said that “you never know until you have the votes,” quipping that the House bill will pass without changes “if things go well.” 

Lee, who is offering one of the amendments, predicted that the margin on the House bill would depend on the outcome of the amendment fight. 

“If none of the amendments are adopted, I think it gets tougher to pass it,” he said. 

Under a deal struck by leadership, when the Senate takes up the House bill, it will also vote on an amendment from Lee and Sen. Patrick LeahyPatrick Joseph LeahyBiden says Trump's impeachment trial 'has to happen' House formally sends impeachment to Senate, putting Trump on trial for Capitol riot Most in new poll support Trump impeachment, want Senate conviction MORE (D-Vt.), a second from Paul, and a third from Sens. Steve DainesSteven (Steve) David DainesOVERNIGHT ENERGY: Biden's Interior Department temporarily blocks new drilling on public lands | Group of GOP senators seeks to block Biden moves on Paris, Keystone | Judge grants preliminary approval for 0M Flint water crisis settlement Group of GOP senators seeks to block Biden moves on Paris, Keystone Biden recommits US to Paris climate accord MORE (R-Mont.) and Ron WydenRonald (Ron) Lee WydenHawley files ethics counter-complaint against seven Democratic senators Hillicon Valley: Intelligence agency gathers US smartphone location data without warrants, memo says | Democrats seek answers on impact of Russian hack on DOJ, courts | Airbnb offers Biden administration help with vaccine distribution Intelligence agency gathers US smartphone location data without warrants, memo says MORE (D-Ore.), each of which adds more reforms to either the FISA court or the surveillance programs beyond what was included in the House bill. 

The amendment from Paul would prevent FISA warrants from being used against Americans, the Lee-Leahy proposal would strengthen the role of outside advisers, and the Daines-Wyden amendment would prevent law enforcement from obtaining internet browsing and search data history. 


The House bill made some reforms to the FISA court amid pressure from a coalition of libertarian-minded Republicans and progressives in the House, which were melded with growing GOP concerns about the implications of Department of Justice Inspector General Michael Horowitz’s finding of errors within the warrant applications related to former Trump campaign adviser Carter Page.

The reforms include requiring the attorney general to sign off on FISA warrant applications involving elected officials.

Several senators say they are open to further changes and remain undecided on if they would support the House bill without additional reforms. Because each of the amendments is expected to need 60 votes, they are likely to fail. 

“I’m going to support Mike Lee’s amendment. ... If it doesn’t pass, if we don’t have an amended version, I’m still undecided,” Sen. Kevin CramerKevin John CramerGroup of GOP senators seeks to block Biden moves on Paris, Keystone McConnell faces conservative backlash over Trump criticism McConnell keeps GOP guessing on Trump impeachment MORE (R-N.D.) told The Hill. 

Sens. James LankfordJames Paul LankfordHawley files ethics counter-complaint against seven Democratic senators Senate panel unanimously advances Yellen nomination for Treasury The Hill's 12:30 Report: What to expect for inauguration MORE (R-Okla.), John KennedyJohn Neely KennedyMORE (R-La.) and Mike BraunMichael BraunBiden signals he's willing to delay Trump trial McConnell proposes postponing impeachment trial until February The Hill's Morning Report - Biden takes office, calls for end to 'uncivil war' MORE (R-Ind.) added that they were also undecided on supporting the House bill. 

“I’ll be voting for both of the Lee and the Paul amendments,” Braun said, adding that he would have to “think about” whether he will vote for the House bill without them. 


Sens. Dick DurbinDick DurbinJustice watchdog to probe whether officials sought to interfere with election Moderates vow to 'be a force' under Biden Skepticism reigns as Biden, McConnell begin new era MORE (D-Ill.) and Chris MurphyChristopher (Chris) Scott MurphyThe Hill's Morning Report - Biden: Focus on vaccine, virus, travel Tensions running high after gun incident near House floor Democrats float 14th Amendment to bar Trump from office MORE (D-Conn.) also indicated they are undecided.

“There are some amendments that have been offered and that will decide my final vote,” Durbin said, indicating that he is supportive of the Lee-Leahy proposal. 

Senate Judiciary Committee Chairman Lindsey GrahamLindsey Olin GrahamSenators spar over validity of Trump impeachment trial Trump selects South Carolina lawyer for impeachment trial Democrats formally elect Harrison as new DNC chair MORE (R-S.C.) is running his own investigation into the FISA process, which supporters of the House bill argue could be a forum for making broader changes to the surveillance court separate from next week’s vote.

Sen. John CornynJohn CornynMcConnell: Power-sharing deal can proceed after Manchin, Sinema back filibuster Manchin vows that he won't vote to kill filibuster 'under any condition' Leahy, not Roberts, to preside over impeachment trial MORE (R-Texas), who is a member of Graham’s committee, said he would support the House bill and that additional changes to the FISA process should go through "regular order."

Republicans have grown increasingly alarmed about the FISA process in the wake of Horowitz’s finding of errors in the FBI’s handling of warrant applications. Graham has already started holding closed-door depositions with lower-level officials and has said he wants to work his way up to higher-profile targets such as former FBI Director James ComeyJames Brien ComeyHawaii GOP official resigns over now-deleted tweet defending QAnon supporters Biden to keep Wray as FBI director Comey: 'Republican Party has to be burned to the ground' MORE and former Deputy Attorney General Rod RosensteinRod RosensteinRosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented' Comey argues Trump shouldn't be prosecuted after leaving Oval Office Trump turns his ire toward Cabinet members MORE

Kennedy, a member of Graham’s committee, said he was undecided on the House bill. 


“I’m looking hard at the amendments. I mean I think we ought to renew the statue, but I’m not convinced we ought to renew the statue without making some necessary changes,” he said.

Kennedy stressed that he wasn’t criticizing Graham but said he had heard for years around Washington that “we’re going to fix the FBI problem.” 

“And we’ve never done it,” he said. “And you don’t get that many opportunities around here to make changes, and this is an opportunity to try to fix it.”