Without Action From Congress, 3 Surveillance Authorities Will Lapse

Mar 11, 2020
Originally published on March 11, 2020 11:59 am
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RACHEL MARTIN, HOST:

All right. A set of surveillance tools used by the FBI in national security investigations is set to expire on Sunday. To be more specific, the rules governing those tools are set to expire. Lawmakers on both sides of the aisle want to implement reforms, but they're fighting over how far those changes should go. NPR justice correspondent Ryan Lucas has the story.

RYAN LUCAS, BYLINE: The three surveillance authorities that will lapse this weekend without action from Congress are not tied to the Russia investigation. And yet, that probe has loomed large over the debate about whether to reauthorize them. Exhibit A - this recent TV ad paid for by the American Civil Liberties Union and the conservative group FreedomWorks.

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UNIDENTIFIED PERSON: Now we know the truth, a rogue FBI illegally spying on Americans and spying on Carter Page, a Trump campaign adviser.

LUCAS: The FBI got an order from the Foreign Intelligence Surveillance Court, or FISA Court, to wiretap Page in the early stages of the Russia investigation. Late last year, a report from the Justice Department inspector general found 17 significant inaccuracies and omissions in the FBI's application to the court to get that surveillance on Page. That sparked an outcry and helped fuel a push for change from those on both sides of the political spectrum.

In their ad, the ACLU and FreedomWorks appealed directly to President Trump to deliver a message to Congress.

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UNIDENTIFIED PERSON: Tell them to rein in a rogue FBI and reform our surveillance laws so that this never happens again.

LUCAS: The three sections that are set to lapse March 15 are known as the business records, roving wiretap and lone wolf provisions. All three are designed primarily for counterterrorism investigations, and the intelligence community says they are critical to national security.

But the tight deadline has provided an opportunity and, rarer yet, a bit of leverage for those who want to see significant changes made to surveillance law, says Elizabeth Goitein of the Brennan Center for Justice.

ELIZABETH GOITEIN: There's no question that there's a unique window here. And a lot of that is the inspector general's report on the Carter Page FISA Title I applications, which has created Republican support for FISA reforms that did not previously exist.

LUCAS: Traditionally, Republicans have supported the government's surveillance powers. Now the Trump administration and lawmakers from both parties are fighting over what potential reform might look like. Liberal members of the House want more civil liberties protections. Conservatives are driven by concerns about the problems documented in the Page surveillance, which was conducted under a separate part of FISA. Centrists in the intelligence community want to preserve the government's national security surveillance tools. Again, Goitein.

GOITEIN: Finding the common ground and coming up with a bill that's going to satisfy all the parties - it's a tricky business.

LUCAS: An initial proposal from the Democratic chairman of the House Judiciary and Intelligence committees fell flat with progressives and some of the president's most loyal Republican allies. Since then, Democrats have worked behind closed doors to hammer out a compromise. Tuesday evening, they appeared to have a deal that would address at least some of the lawmakers' reservations.

The biggest question mark in all of this is President Trump. He's lashed out at the FBI over the Page surveillance, but it's unclear at this point what specifically he wants to see happen with FISA. Trump has met with Attorney General William Barr and Republican lawmakers at the White House to hear their views. One of those lawmakers, Senator Rand Paul of Kentucky, summed up Trump's take this way on Fox.

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RAND PAUL: I can tell you the president absolutely sides with those of us who say there has to be reform. And he's not signing any bill that doesn't have reform on it.

LUCAS: As the clock ticks down to the deadline, the question remains what exactly those changes will be. That said, if Congress can't reauthorize the law by Sunday, it could pass a short-term extension to give lawmakers more time to find an elusive compromise.

Ryan Lucas, NPR News, Washington.

(SOUNDBITE OF SIGNAL HILL'S "A SECRET SOCIETY") Transcript provided by NPR, Copyright NPR.