FISA hawks are not happy with a potential deal that would reauthorize the law’s three expiring surveillance powers before Sunday’s March 15 deadline absent the significant reforms they believe are necessary.
Reports broke Monday night and Tuesday that a deal was close, with House Minority Leader Kevin McCarthy saying there were “good negotiations over the weekend” between Republicans and Democrats.
“Hopefully we can get that done today and vote by the end of the week,” he told CNN.
But Representative Warren Davidson (R., Ohio), who has been at the center of efforts to unite progressives and conservatives in the push for major reforms, told National Review on Monday evening that “the status quo people” continue to obstruct FISA skeptics’ reform efforts.
“They essentially said ‘yea, no thanks, we think we got a different coalition of intel hawks and some centrist Republicans and Democrats, which are largely for preserving the status quo of frankly, spying on Americans in violation of the Constitution,’” Davidson explained.
Representative Pramila Jayapal (D. Wash.) echoed the sentiment to reporters on Tuesday. “I had thought that we were at an agreement, but it appears we may not because there’s no language that I have not seen,” Jayapal said. “So I don’t know where we’re going to be on that.”
Davidson and Jayapal joined California Democrat Zoe Lofgren to propose the Safeguarding American’s Private Records Act (SAPRA) in January — in conjunction with an effort led in the upper chamber by Senators Ron Wyden (D., Ore.) and Steve Daines (R., Mont.). SAPRA targets FISA’s business-records program — also known as Section 215 of the Patriot Act. Privacy advocates argue the surveillance power violates the Fourth Amendment because it allows the FBI to access the records and documents of a U.S. citizen by issuing a FISA warrant issued to a telecom company or other third party.
FISA’s “roving wiretap” authority, which allows authorities to monitor suspects who change phones, and its “lone wolves” provision, which gives the government authority to surveil suspects inspired by foreign governments, are also up for renewal.
Lofgren, who sits on the House Judiciary Committee, caused Jerry Nadler to suspend the markup of his original FISA reform bill in February by proposing the more hardline amendments “pulled directly from SAPRA.”
Davidson said he and Lofgren had attempted to negotiate with House leadership to offer “a range of amendments that were short of SAPRA,” but had been rebuffed.
“There’s also a bipartisan coalition of progressives and conservatives that are for, how about we just follow the Constitution, which would say if you want to do anything for Americans, you need probable cause and a warrant, and so the idea that we wouldn’t go with that, it’s hard for a lot of us to accept,” he said.
Davidson also praised President Trump’s reported unwillingness to reauthorize FISA and said the president’s skeptical disposition — no doubt informed by his experience as the target of the FBI’s Crossfire Hurricane investigation — has motivated Republicans who may have been unwilling to rock the boat if Trump had joined attorney general William Barr in backing a clean reauthorization.
“I’ll tell you broadly amongst Republicans, there is a strong desire to reform the system, even among people that previously had been supportive of the Patriot Act, because of how it was abused,” he said.
Davidson was referencing Department of Justice Inspector General Michael Horowitz’s report, which detailed 17 “significant errors or omissions” in the FBI’s FISA application to surveil Carter Page. The report galvanized Republican opposition to the statute and how it’s been wielded to serve what the president’s most vocal defenders see as the political motivation.
On Monday night, Barr met with House Republicans in McCarthy’s office to go over options on FISA, with Representative Jim Jordan (R., Ohio) saying after the meeting that “we’re close.”
The comments echoed those made by Nadler, who said Tuesday that “I think we’re very close,” adding that the House could pass a deal “very quickly” and as soon as Wednesday.
Davidson, who was at the meeting, told National Review on Tuesday he found the meeting “productive” and that “it indicated room for more potential agreement,” but was not sure “everyone will come to a consensus.”
But Representative Andy Biggs (R., Ariz.), slammed Barr, and said he left the meeting “a bit discouraged.”
“I didn’t see any willingness to move on the part of the attorney general. A lot of these proposed reforms that we see is just basically internal, they don’t want it to be statutory, they want the fox to guard the hen house,” Biggs told National Review on Tuesday. “It’s one thing if you’re going to tell us, ‘well, we can clean that up from the inside,’ if you’d actually had indicted somebody, if you’d actually prosecuted somebody, for misconduct. But when there’s overt misconduct — and the report from the IG indicates that — and you’re telling you can clean it up, but we’re waiting all these months later and nothing’s happened, it does make me question maybe a little of the sincerity there or the commitment to actually impose internal discipline.”
Biggs also agreed with Davidson’s characterization of the negotiations on reforms, saying that “the people who want status quo, they really don’t want to give a whole lot.”
“Even some of the reforms that are proposed are really toothless and maybe symbolic more than actual,” he explained.
Davidson also said he and Lofgren were working on new “bill text to match up” to the legislation released Monday night by Senators Mike Lee (R., Utah) and Patrick Leahy (D., Vt.). The “USA FREEDOM Extension and Amici Curiae Reform Act” proposes a three-month extension of the expiring FISA powers, as well as “significant” reform of the FISA amicus curiae process, including the appointment of an amicus with expertise in privacy and civil liberties to help boost protections for U.S. citizens.
“We’re just continuing to work on bipartisan, bicameral solutions to demonstrate that there is broad support for reform,” Davidson said. “ . . . We’ve got time to have real debate.”