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Clock ticks to surveillance expiration with no FISA deal in sight

Three authorities expire on March 15

When Congress returns Monday, there will be less than a week to reauthorize three surveillance powers, and lawmakers will be scrambling to reach a deal on an extension.

House leaders said Thursday they were continuing to exchange proposals on how to update the broader surveillance law that governs operation of the Foreign Intelligence Surveillance Court.

“There are negotiations ongoing between Republicans and Democrats to try to come to an agreement on not only how to renew the FISA law but also how to make the reforms that are critical and necessary to the FISA law to address the abuses that we know happened,” House Minority Whip Steve Scalise said in his weekly floor colloquy with Majority Leader Steny H. Hoyer.

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Hoyer said the majority side had recently sent a counterproposal to the Republicans on potential changes. However, Hoyer described President Donald Trump’s focus on the treatment of former Trump campaign adviser Carter Page as somewhat distracting from the immediate question of the three expiring provisions.

“Attorney General Barr recommended that we reauthorize the FISA Section 215 as is,” Hoyer said. “I don’t know what his present position is, because he was criticized by the president in a tweet. So, heavens knows what he did in response to the tweet.

“We all want appropriate, honest disclosures from people who present information to the FISA Court. But in this case, the focus on a non-related to Section 215 [of the Patriot Act] issue is slowing up this process.”

Texas Republican Sen. John Cornyn, a member of both the Judiciary and Intelligence committees, is among the lawmakers who agree with the attorney general.

“It’s not realistic to think that we can do reform of the Foreign Intelligence Surveillance Act between now and March the 15th, so I think the most realistic thing would be let’s do a short-term extension,” Cornyn said Thursday. “They’re really not controversial. It’s the business records provision, it’s the lone wolf, it’s the roving wiretap provision.”

Scalise emphasized the need to overhaul the broader FISA Court process. “No Republican, no Democrat candidate for president ought to be concerned that people in intelligence agencies are abusing their power to try to undermine an election,” the Louisiana Republican said on the House floor.

The House Judiciary Committee had scrapped a scheduled markup of draft FISA legislation, and Chairman Jerrold Nadler of New York told CNN he would rather see the law lapse than have it reauthorized without amendment.

But Speaker Nancy Pelosi said Thursday that she did not agree with Democrats who have indicated they would be OK with having surveillance authorities expire.

“We have to have an extension — not an extension, we have to have a reauthorization,” Pelosi said.

Section 215 orders let authorities collect business and other records of individuals through the court. The roving wiretap provision lets government get orders targeting people who frequently change phone lines or use burner devices in an effort to avoid traditional wiretaps on individual lines. Lone wolf provisions allow for the FISA Court to issue targeting surveillance on suspected terrorists that operate outside of formal networks.

Kentucky GOP Sen. Rand Paul, who objected to a last-minute extension effort in May 2015, which led to a brief lapse in authorities, has stressed throughout the week that Trump does not want an extension without an overhaul effort.

“The president made it absolutely clear. No quibbling about it. Absolutely clear. He will not sign a clean reauthorization of the Patriot Act unless we reform FISA,” Paul said in a Fox Business Network interview that followed a White House meeting on Tuesday.

Cornyn was hoping that Paul would not block a last-minute extension, even though the Kentucky senator has been generally consistent on the surveillance questions.

“He may decide to do that here, and unfortunately I think that’s a risky proposition because if something bad happens, I wouldn’t want to be in a position of blocking the tools that are necessary to protect the country,” Cornyn said.

Likewise, Senate Intelligence Chairman Richard M. Burr acknowledged that an expiration was possible given the March 15 deadline. “If people want that hanging on their head, they can,” the North Carolina Republican said.

Lindsey McPherson contributed to this report.

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