A key government surveillance tool set to expire in 2017 could be jeopardized by a string of intelligence leaks that have damaged the Trump administration, and led to questions about whether federal officials can protect the information they collect.
Top members of the House Intelligence Committee are warning they won’t renew a provision in the Foreign Intelligence Surveillance Act until they get to the bottom of how classified information identifying Trump administration officials was leaked to the media earlier this year.
“We are not going to reauthorize these surveillance programs if the American people are not satisfied that their security is going to be safeguarded,” Rep. Trey Gowdy, R-S.C., a member of the House Intelligence Committee, said recently on Fox News.
Section 702 of the FISA law gives the Intelligence Community the authority to eavesdrop on communications of foreigners outside the United States.
The law is aimed at giving U.S. intelligence officials the tools needed to thwart terror plots and other threats, but it also grants authority to monitor American citizens swept up in the communication with foreigners who are under U.S. surveillance.
Ousted national security adviser Mike Flynn was picked up by U.S. intelligence officials when he spoke with Russian government officials after the election but before the new Trump administration took office.
Flynn’s name was exposed and leaked to the media, one of several disclosures that have infuriated Republican lawmakers who would normally not hesitate to renew the 702 provision in the FISA law.
The provision may have also been used to target President Trump’s transition office after the election, some Republicans believe. Republicans believe the leaks were carried out for political purposes by Obama administration officials and holdovers aiming to damage the Trump administration.
As a result, Republicans are threatening to block the 702 provision.
Intelligence Committee Chairman Devin Nunes, R-Calif., wouldn’t comment extensively on the unmasking or the looming expiration of key FISA surveillance provisions. But when asked by the Washington Examiner if it would be difficult extend the expiring FISA provisions, he answered, “I think it’s pretty obvious.”
Shahid Buttar, who is the director of grassroots advocacy for the Electronic Frontier Foundation, told the Washington Examiner the issue of surveillance abuse by American intelligence organizations has long raised the ire of the GOP base.
“Conservatives were among the many Americans outraged when the NSA’s domestic telephone monitoring was revealed in 2005 and again in 2013, when the Snowden revelations proved that senior intelligence officials had lied under oath, precluding meaningful congressional oversight,” Buttar said.
The House may have difficulty reauthorizing the surveillance program because the typical bloc of Democratic opponents to the FISA provisions could be joined by Republicans angered over the intelligence leaks.
The last time Congress reauthorized FISA provisions was in 2012, and it required mostly Republicans to move it across the finish line. The majority of Democrats opposed it.
“It takes a bipartisan group to get this passed,” a Republican source told the Washington Examiner.
Republicans want answers from the FBI, which is supposed to be investigating the unmasking of Flynn and the leaks to the media.
“The big hangup is we are not getting all the information,” the GOP source said. “That is the problem.”
The FISA provisions expire at the end of the year, setting up a potentially big headache for lawmakers who will likely be struggling to pass spending bills, healthcare reform and tax reform.
The Senate typically struggles to pass surveillance legislation due to a very narrow GOP majority and opposition from privacy advocates in their own party, including Sen. Rand Paul, R-Ky., who stalled a surveillance extension in 2015.
Paul called the 702 provision “a backdoor search of Americans” in a March CBS interview.
Lawmakers in both parties have been demanding the intelligence agencies reveal how often U.S. citizens are surveilled under the 702 provision.
“We need to get the number of law-abiding Americans swept up” in the 702 collection, Sen. Ron Wyden, D-Ore., a senior member of the Senate Intelligence Committee, told the Washington Examiner. “A lot of House conservatives are with me on this.”
Sen. Mark Warner, the ranking Democrat on the Senate Intelligence Committee, said the panel members “haven’t set a timeline” for renewing FISA provisions.
Dan Coats, the director of national intelligence, said renewing the expiring FISA provisions is his top legislative priority. And Intelligence Committee Chairman Richard Burr, R-N.C., told the Washington Examiner, “It’s got to be done.”
