A bill to reform the process by which the government is able to obtain secret surveillance warrants against terrorists and criminals has been introduced in the House but faces an uncertain future.
The bill, the USA Freedom Reauthorization Act will replace the FISA Act, which is set to expire on Sunday. It’s a bipartisan effort to fix some of the abuses that came to light during the process by which the FBI was able to spy on Trump campaign aide Carter Page in 2015.
Judiciary Committee Chairman Rep. Jerry Nadler doesn’t think the bill goes far enough but is a reasonable compromise.
At issue are three surveillance provisions that are set to expire March 15, including one that permits the FBI to obtain court orders to collect business records on subjects in national security investigations. Another, known as the “roving wiretap” provision, permits surveillance on subjects even after they’ve changed phones, and to monitor subjects who don’t have ties to international terrorist organizations.
Nadler said the bill tightens up the legislation to avoid abuses but doesn’t go far enough on ensuring civil liberties. “But we cannot let the perfect be the enemy of the good,” Nadler said at a Rules Committee hearing Tuesday night when unveiling the legislation. “This bill is an important package of reforms.”
The top Republican on the committee, Rep. James Jordan, also thinks the bill is imperfect but represents “real reform.”
A top Republican on the Judiciary Committee, Ohio Rep. Jim Jordan, agreed with Nadler that the legislation could have gone further, “but it does represent real reform.” The revisions, he said, are much better than the current FBI surveillance tools that have come into focus with the botched FBI application to surveil former Trump campaign aide Carter Page in the Russia probe.
“This bill before us represents real reform to the FISA program,” Jordan said in striking a bipartisan tone with Nadler. “These reforms have long been necessary but have been especially warranted in recent years, given the FBI spying on the Trump campaign affiliate Carter Page.”
Several investigations into the process that ensnared Carter Page, including one by the Justice Department inspector general and another by the FISA court itself, revealed an out-of-control FBI who created the flimsiest evidence to obtain surveillance warrants. The government lied, hid exculpatory evidence, and even faked documents to surveil Page.
Another issue Congress is dealing with is the metadata program to gather bulk communications of the American people. That program will now officially end. But the FBI and Justice Department don’t want to scuttle the entire crime-fighting provision. They will still be able to obtain a secret warrant except in cases where a standard warrant would be needed.
Another key reform is greater oversight.
The new legislation requires the attorney general to personally sign off on surveilling government officials.
“The Page investigation did not require the sign off of the Attorney General,” Jordan, R-Ohio, said. “… We now require the Attorney General to approve in writing any FISA investigation of an elected official or federal candidate.”
There will also now be penalties for giving false information to the court. “There are penalties for hiding information from the court, and there are penalties for leaking information about the application to the court,” Jordan added.
Even with increased oversight, the bill falls far short of what’s necessary to ensure civil liberties. In the entire history of the FISA court, there have been nearly 34,000 warrant applications and only 12 were turned down. You have to wonder how many innocent Americans got caught up in this information dragnet. We’ll probably never know.