Former U.S. Attorney Andrew McCarthy argued Sens. Rand Paul and Mike Lee are trying to “hoodwink” President Trump into killing three Foreign Intelligence Surveillance Act powers unrelated to the Trump-Russia FISA abuses of 2016.
“Senators Paul and Lee may be wrong about counterterrorism, but they’re not dumb. They realized that if they could persuade the president that ‘FISA reform’ was really about holding the FBI accountable for the Trump–Russia collusion shenanigans, they could achieve a major roll-back of post-9/11 counterterrorism policy,” McCarthy wrote in a National Review column over the weekend. “Senators Paul and Lee, their progressive allies, and the Trump supporters they’ve hoodwinked would make us vulnerable to terrorists without fixing FISA.”
Three FISA authorities lapsed Sunday: “roving wiretap” power which lets agents continue tracking a suspect even when they switch cellphones, the “lone wolf” amendment allowing officials to monitor suspected terrorists with possible links to foreign groups, and the “business records” provision giving investigators the ability to collect records and follow the money. The House voted to renew the powers last week, but the Senate has yet to vote.
The legislation includes changes to the FISA process to strengthen congressional oversight and discourage politicized investigations, and the leaders of both parties, along with Attorney General William Barr, support renewal. Some of the GOP’s biggest FBI critics, such as Rep. Jim Jordan of Ohio and Rep. Devin Nunes of California, also supported the FISA reauthorization.
But Trump hinted he may veto it, and Lee and Paul threw Senate roadblocks up, using the FISA expiration to push for fundamental changes.
FISA’s “lone wolf” amendment, part of the Intelligence Reform and Terrorism Prevention Act of 2004, as well the “roving wiretaps” and “business records” provisions, which as aspects of the USA Patriot Act of 2001, are considered by national security experts to be key tools for thwarting attacks and catching spies. McCarthy wrote that “FISA surveillance (the kind to which the Trump campaign was subjected) will not die if the three provisions lapse” and “the only things that will die are investigative tools that help our government monitor actual clandestine operatives.”
McCarthy, who wrote a book titled, Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency, argued the three powers at stake “have very little to do with FISA — and nothing to do with the Russia-related malfeasance that comes to mind when Paul, Lee, and Trump supporters rail about ‘FISA reform.'”
Lee took to the floor of the Senate to make his case.
“They used the apparatus of the U.S. government’s superb intelligence gathering agencies to spy on then-candidate Donald Trump, now President of the United States,” the Republican Utah senator said. “They did so in a way that was entirely predictable, entirely foreseeable, and in some ways avoidable if we had the right laws on the books.”
Trump’s allies have demanded FISA reform after DOJ Inspector General Michael Horowitz released a report criticizing the Justice Department and FBI for at least 17 “significant errors and omissions” related to the FISA surveillance of Trump campaign associate Carter Page and the reliance on British ex-spy Christopher Steele’s salacious and unverified dossier.
Lee focused his ire on the business records provision and said he’d be “fine” with the other two provisions being reauthorized. He suggested a 45-day extension on the current law to give more time for debate.
“If the president of the United States has reason to be concerned about FISA, what about the rest of Americans?” Lee said. “What we’re seeking here are a few modest reforms to make sure it’s a little bit harder to abuse this law.”
Lee called the FISA power expirations a “unique opportunity” to make changes.
Paul released a statement saying, “we should not reauthorize these expiring surveillance powers without real reform.” The Republican Kentucky senator tweeted that “the ‘Deal’ on FISA is weak sauce diluted & made impotent by A.G. Barr.”
Trump tweeted last week that “many Republican Senators want me to Veto the FISA Bill until we find out what led to, and happened with, the illegal attempted ‘coup’ of the duly elected President of the United States, and others!”
But Senate Majority Leader Mitch McConnell said that “we have to continue equipping our national security professionals and the intelligence community to anticipate, confront, and eliminate the threats facing our country — and we also have to respond to the failures of 2016 with real reforms.”
Jordan, who calls the FBI’s 2016 actions a “coup” attempt, helped the FISA legislation pass the House, saying it “begins to address the problems that we saw with the FBI’s illegal surveillance.”
Nunes, who warned about FISA abuse since 2017, also helped usher it through.
“FISA is a critical tool for thwarting terrorist plots and collecting vital intelligence on actors who are hostile to U.S. interests,” the top Republican on the House Intelligence Committee said. “This is the first step in imposing reforms to address these gross abuses and restore accountability.”
The FISA reforms in the bill include requiring attorney general approval to obtain surveillance against federal candidates, stronger penalties for FISA abuse, and congressional access to FISA materials. The legislation expands the role of the court-appointed amicus curiae, increases the power of the Privacy and Civil Liberties Oversight Board, and creates an Office of Compliance at the FBI. And it ends the government’s ability to collect phone call metadata.