Sen. Rand Paul (R-Ky.) is taking on a familiar role as a thorn in the side of leadership as Congress barrels toward a surveillance deadline with no deal in sight.
Paul, a libertarian-minded Republican, is pushing for broader surveillance court reforms to be included as part of any bill that reauthorizes or extends the expiring provisions of the USA Freedom Act, a 2015 law that overhauled the country’s intelligence programs.
"The time is ripe now. It’s an inflection point. You’ve got Republicans coming around to this," Paul said. "I think even the powers that be in the Senate, the Republicans that don't like it, they know that the president wants it, they know a lot of us who are reformers want it, and so I ultimately I think they acquiesce."
Paul isn’t the only GOP senator pushing reforms as part of the USA Freedom debate — Sen. Mike Lee (R-Utah), for example, is also deeply involved — but Paul has publicly emerged as the loudest voice within the Senate Republican Conference to demand changes to the court created by the Foreign Intelligence Surveillance Act (FISA).
His position puts him at odds with Senate Majority Leader Mitch McConnell (R-Ky.), who has personally backed a clean extension of the three expiring provisions that relate to roving wiretaps, lone wolf surveillance and a controversial phone records program.
But with no deal in sight and the clock ticking, McConnell is likely to need cooperation from Paul to get legislation across the floor.
The GOP leader has yet to tee up any bill related to the expiring USA Freedom provisions. Instead, the chamber will take a procedural vote on Monday night on a mammoth energy package, with final passage of that bill expected on Tuesday or Wednesday. The surveillance deadline, March 15, is a Sunday; the Senate normally leaves town for the week on Thursday afternoon.
Paul says he won't support a short-term extension and appeared skeptical that he would back a larger deal that paired a USA Freedom extension with reforms to FISA, though he added that he could support some of the surveillance reforms if they get standalone votes, as amendments, for example.
He’s also pushing for an amendment vote to prohibit FISA warrants from being used against American citizens and to prohibit information obtained in the FISA courts from being used against a U.S. citizen in domestic courts.
“I’m not for any extension. I’m for fixing it. ... I'll vote no on any extension,” Paul said.
The dynamic is reminiscent of a 2015 debate in which Paul was able to use hardball procedural tactics to force a temporary lapse of expiring Patriot Act provisions, though supporters were able to pass the USA Freedom Act, which reformed the provisions, over Paul’s opposition 36 hours later.
The 2015 drama included a middle-of-the-night showdown as McConnell tried to clear several short-term reauthorizations, only to be blocked by Paul and his allies in the surveillance fight. In a dramatic moment, McConnell — the senior senator from Kentucky who had endorsed Paul’s presidential bid — asked first for a two-month extension of the expiring provisions, then for eight days, then five, then three, then two, but was blocked at every turn.
There are differences. Unlike with the current fight over the USA Freedom bill, in 2015, Paul explicitly threatened to filibuster the Patriot Act provisions as he made the surveillance fight a key pillar of his presidential campaign.
Asked if he would allow McConnell to speed up consideration of a short-term extension of the USA Freedom Act, Paul sidestepped, saying his focus was on getting FISA reforms.
“I think there needs to be FISA reform, and I’ll continue to insist on FISA reform,” Paul said.
Spokesmen for McConnell didn’t respond to a request for comment about talks with Paul or his staff about letting a bill move quickly. Procedurally, the GOP leader has options for how he moves a bill and can keep the Senate into the weekend to buy himself more time.
Republican senators acknowledge that they are in the dark about what Paul may or may not do as lawmakers try to figure out what they can get passed before March 15. Adding to the timing crunch, the House is expected to hold last votes for the week on Thursday.
“He may decide to do that here. 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,” said Sen. John Cornyn (R-Texas), an adviser to McConnell and a member of the Senate Intelligence Committee.
Sen. John Thune (R-S.D.), the No. 2 Republican senator, argued that there was “strong bipartisan support” for a short-term extension.
“So you just have to run the clock and win procedurally, but I would hope at least that we might be able to get our members to agree to a short-term extension,” Thune said.
Paul told reporters that he thought Trump would support a roughly two-week extension. But Thune countered that it would take more time for Congress to agree to broader FISA reforms and that he didn’t think “that anything is lost” by passing a two- or three-month extension.
“The question is, does the president and do the people who don’t want to see any extension at all make it difficult to get that done?” he added.
What will be able to pass is unclear. House leadership is continuing negotiations on a larger deal, while lawmakers have also floated a one- to three-month short-term extension. As the deadline draws closer, so does the chance that lawmakers aren’t able to get a deal on anything, something leadership in both chambers had stressed they want to avoid.
“If people want that hanging on their head, they can,” said Sen. Richard Burr (R-N.C.), the chairman of the Senate Intelligence Committee, about a potential lapse.
Paul is part of a group of progressives and libertarian-minded GOP lawmakers who have warned for years that the FISA court does not provide enough transparency or privacy protections for those under surveillance.
They found broader support among Republicans in both chambers after Justice Department Inspector General Michael Horowitz found 17 “significant inaccuracies and omissions” as part of the warrant applications involving Trump associate Carter Page.
Attorney General William Barr pitched Senate Republicans late last month on a “clean” extension of the USA Freedom provisions while promising to use his own rulemaking authority to make changes to the FISA process.
But Paul appears to have a powerful ally in Trump, who railed against the Obama-era FBI during an interview this week with Fox News, saying that the FBI “weaponized FISA” and “used it horribly.”
Trump told Republicans, including Paul and McConnell, during a meeting at the White House that he would not extend the USA Freedom provisions without FISA reforms. Paul quickly touted the news on Twitter, during a TV interview and with a small gaggle of reporters back at the Capitol.
“I think that helps. I think that the fact that he’s been explicit in saying no clean reauthorization ... without significant reforms, that was very apparent,” Paul told reporters. “Even the attorney general, I think, has decided he better catch the train and modulate what comes out rather than just opposing it.”
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