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House negotiators reach FISA deal as expiry nears

Lee and Leahy offer overhaul plan as House reaches deal

Sen. Mike Lee, R-Utah.,  has warned against a renewal without an overhaul.
Sen. Mike Lee, R-Utah., has warned against a renewal without an overhaul. (CQ Roll Call)

House negotiators have reached an agreement on overhauling surveillance authorities and reauthorizing some expiring provisions.

Senior House Democratic and Republican aides confirmed that the measure (HR 6172) posted Tuesday to reauthorize the Foreign Intelligence Surveillance Court was the bipartisan work-product of House leadership and members of the Judiciary and Intelligence committees.

Negotiators had hoped for a breakthrough to reauthorize the expiring surveillance powers before the end of the week, with the focus on bipartisan discussions in the House.

The question of what to do about the court does not split nicely along party lines, and those fissures risked the expiration of authorities that were previously extended through March 15.

“We had good negotiations over the weekends with the Democrats and Republicans. I had a microcosm of our conference in today,” House Minority Leader Kevin McCarthy said Tuesday morning.

“I think we’re in a very good place,” the California Republican said. “This morning we brought back to the Democrats some other changes we would have to where we are in negotiation. Hopefully we can get that done today, and vote before the end of the week.”

McCarthy hosted meetings Monday evening between a number of key House Republicans and Attorney General William Barr.

But even if there is a deal on the House side, it was anybody’s guess if that package could pass the Senate in time.

“What a great question,” responded Senate Intelligence Vice Chairman Mark Warner, D-Va., when asked about the prospects of such an agreement getting through the Senate.

Lindsey Graham, the chairman of the Senate Judiciary Committee, was hopeful earlier Tuesday that the House-side discussions would yield fruit.

“I’m going to talk with the attorney general this afternoon. If the House Rs and Ds can come together and reach an agreement with Barr, I would be very inclined to support it,” Graham said. “Have to look at the details, but that would be a major breakthrough.”

Graham, a South Carolina Republican, had a familiar warning for Republican colleagues in the Senate who might block a short-term extension of the expiring provisions: “They do so at their own peril.”

Of course, Graham’s words of warning do not carry much, if any, resonance with the senators who oppose a straightforward extension without an overhaul.

“The #deepstate spied on @realDonaldTrump. PATRIOT Act §215 makes it easier for the feds to spy on Americans,” Sen. Mike Lee, R-Utah, tweeted Monday. “FISA should be used to stop foreign terrorists, not spy on U.S. citizens. Absent major FISA reform, we should let 215 expire this week!”

Lee joined with Senate Judiciary ranking member Patrick J. Leahy, D-Vt., on Tuesday to unveil an overhaul proposal. It would end the currently suspended Call Detail Records program of the National Security Agency.

Under the program, the government has been able to request, on an ongoing basis, the details of call records and associated metadata, like the length of calls. The program has been suspended already, but there has been concern that it could be revived.

The Lee-Leahy proposal would require warrants for collecting business records if a similar search by a law enforcement agency would require a warrant.

According to a summary, the legislation also would make other changes including narrowing the definition of “tangible things.” Under the revision, medical records, internet search and web-browsing history and locations of cell towers used would be expressly excluded from the definition.

The senators separately introduced a three-month extension that, like the broader USA Freedom reauthorization proposal, would provide for appointment of an amicus curiae by the FISA Court in sensitive cases, such as those involving political candidates or news organizations. That counsel would be required to represent the privacy interests and other legal interests of individuals targeted by a FISA investigation.

Republican Sen. Rand Paul of Kentucky amplified the tweet from Lee.

“I couldn’t agree more. Real reform or nothing this week,” Paul tweeted.

The expiring Section 215, as currently implemented, allows for secret court orders from the Foreign Intelligence Surveillance Court to require companies to produce business records, including phone records from telephone companies.

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