Internal rifts in both political parties are threatening to derail an effort to renew a set of powerful surveillance tools prized by law enforcement ahead of their expiration next month.
White House officials are aligning with GOP Rep. Jim Jordan of Ohio against Attorney General Bill Barr and Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican, over the best legislative strategy to renew the authorities. Divisions among House Democrats caused an abrupt decision to scrap a key committee vote on Wednesday. And a number of influential Democrats, including House Judiciary Chairman Jerry Nadler, stiffened their opposition to Barr’s and Graham’s call for a quick extension of the authorities to avoid a lapse in the surveillance law.
The growing divisions over both the policy and the legislative strategy are raising the prospects that Congress might not reach a deal by a critical March 15 deadline when the authorities are set to expire.
Jordan, after meeting with White House officials on Wednesday about the matter, told CNN that he differed with Barr’s strategy of a straight extension, arguing changes must be made now to the law.
“I think Barr has done a great job as attorney general, but I don’t think we can do a clean reauthorization,” Jordan said.
At issue is a trio of expiring authorities of the Foreign Intelligence Surveillance Act, or FISA, that have been caught in a proxy fight over the future of the wider national security wiretap program in the wake of cutting criticism from the Justice Department’s inspector general over the bureau’s use of FISA in the Russia investigation. The House Judiciary Committee had been set to hold a hearing Wednesday afternoon to review legislation that would extend the authorization of some of the expiring provisions while also adding in limited reforms, but the hearing was canceled after a last-minute move by a Democratic lawmaker to propose more radical changes.
This week Senate Republicans seemed to be coalescing around their own strategy – a clean reauthorization of the provisions followed by broader reform down the line – further complicating the environment in which lawmakers are acting.
Partisans on both sides of the aisle had dug into their opposition of the bill ahead of the House Judiciary Committee hearing. Rep. Zoe Lofgren, a Democrat from California, had said she wanted to add amendments to the legislation that would inject more civil liberties protections, and Georgia Rep. Doug Collins, the committee’s top Republican, had said on Tuesday that the proposal failed to “protect American citizens – including future presidents and presidential campaigns – from unlawful spying.”
After the committee vote was postponed, Collins slammed the Democrats in a statement for “stall tactics.”
“Democrats are yet again putting our national security at risk with their stall tactics,” Collins said. “Critical counterterrorism provisions are hanging in the balance because Democrats chose to delay an already ill-timed markup.”
Collins and Jordan are among a group of House Republicans who have clamored for even more sweeping changes to the broader FISA system after the Justice Department inspector general reported in December that the FBI had made a series of errors as they sought to wiretap Carter Page, a former Trump campaign adviser.
Reform of the secretive surveillance court where national security officials obtain wiretaps in terrorism and espionage cases has long been a goal of civil liberties groups like the ACLU. The addition of conservative lawmakers inspired by the inspector general report and the President’s criticism of the FBI has created an unusual marriage amid the current debate.
The surveillance bill that had been set to be marked up before the House Judiciary Committee Wednesday afternoon had been crafted over months of careful negotiation with the Judiciary and Intelligence committees, House leadership and outside civil liberties groups like the ACLU, but was scrapped at the last minute after Lofgren said she planned to introduce a group of amendments that were seen as making the legislation’s eventual passage untenable, a committee aide said.
The committee aide said Lofgren’s office had been included early on as the bill was being written, but after this report was published Wednesday, Lofgren denied that in an interview, saying her office had not been part of the negotiation process, had only been shown the text of the bill earlier this month and had expressed around that time that they were interested in making amendments.
Some of the reform provisions from a bipartisan reauthorization bill Lofgren had co-sponsored in January were included in the bill eventually put forward by the Judiciary Committee, though Lofgren had wanted deeper reform, like the expansion of the role of an outside attorney to challenge the government’s evidence before the FISA court.
“They’re simple things to protect the civil rights of Americans. There’s no poison pill in there. If the Constitution is a poison pill we’ve got bigger problems,” Lofgren said.
Tuesday afternoon, Lofgren told committee leadership that she would be introducing the amendments, the aide said. Nadler decided to scrap the markup Wednesday afternoon after consulting with House Speaker Nancy Pelosi and Rep. Adam Schiff, a California Democrat who leads the Intelligence Committee, the aide said.
The Republican fracture on the issue appears to have reached the White House, where influential factions have been pushing the divergent strategies. A number of House conservatives met earlier Wednesday with Jared Kushner and White House counsel Pat Cipollone on the FISA fight, two sources familiar with the situation told CNN.
After the meeting, Jordan, who’s close to the President and set to take over GOP leadership of the House Judiciary Committee with Collins running for the Senate, told CNN that he didn’t support simply passing a clean reauthorization of the expiring provisions and saving the structural reform for a future date.
“(DOJ Inspector General Michael) Horowitz just told us that (the FBI) lied to the FISA court 17 times – 51 mistakes that they made in the whole process, 17 misstatements, omissions, better known as lies, in the Carter Page FISA,” Jordan said. “So we have to reform. There are some good reforms I think we can do.”
Schiff is also resisting a clean reauthorization of the expiring provisions, according to a committee official.
“No,” Nadler said Wednesday when asked if he would back a straight extension of the three expiring provisions.
Among the committee’s rank-and-file members, feelings about the bill were even further mixed.
Rep. Pramila Jayapal, a Washington state Democrat, suggested in an interview that she would be fine with letting the three FISA provisions lapse, though she added the committee was working to find an agreement with “significant reforms” that would make it palatable to a wider group of lawmakers.
“I’m one of those individuals probably that reflects concerns that society has, which is privacy, how much power do we give government and at what expense do we have additional security,” said Rep. Lou Correa, a California Democrat who sits on the committee and was supportive of changes to the bill that was set to be voted on during the Wednesday meeting.
On Tuesday, Barr was on the Hill to lobby for his own plan for the surveillance reform. In a closed-door meeting, Barr urged GOP senators to extend the expiring provisions while he takes steps within the Justice Department to begin reforming elements of the law administratively, according to several senators and a senior Justice Department official.
Barr also indicated that Congress could work on broader reforms to be enacted at a later time, and said he supported the effort by Graham to hold hearings on the issue in future weeks, the senators said.
Barr told the lawmakers that his approach had the support of the National Security Council, the intelligence community and the FBI, although he acknowledged that there are differing opinions within the White House, including at the Domestic Policy Council, the DOJ official said.
On Wednesday, Republican Sen. John Cornyn of Texas warned Nadler that it would be a mistake to block a clean extension of the expiring provisions.
“I don’t know if he wants to be responsible for the expiration of some essential tools for anti-terrorism investigations,” said Cornyn, a member of the Senate Intelligence and Judiciary committees. “I would be surprised if he wants to bare that responsibility but I think that’s where we are right now.”
This story has been updated with additional developments including comments from Rep. Zoe Lofgren.