House Intel wrestles with bill on surveillance powers

The House Intelligence Committee is preparing to put forward its own proposal to renew a controversial but critical surveillance authority, Chairman Devin Nunes (R-Calif.) tells The Hill.

But lawmakers are still wrangling over whether the proposal, expected this week, will include any kind of warrant requirement to protect Americans who are caught up in foreign surveillance.

The committee is weighing a configuration from ranking member Adam Schiff (D-Calif.) that would allow federal investigators to query the database for Americans’ information — but require them to obtain a warrant if they want to make use of the results in court in everyday criminal cases.

That would mark a carefully-crafted but extremely narrow compromise between what the FBI wants — a clean renewal of the current law, with no new limits — and what privacy advocates want — a warrant to search the surveillance database for Americans in the first place.

“There’s a way to maybe split the baby there — if a court needs to be involved because [the data] was going to be used in a criminal case,” committee Republican Mike Conaway (Texas) said Wednesday.  

But that possibility is still “to be determined,” Conaway said.

The Intelligence Committee is in ongoing talks with its counterpart in the Senate — discussions that Senate Intel chair Richard Burr (R-N.C.) says are focused on “hammering out” only small differences in their two proposals.

But the Senate Intel bill eschews a warrant requirement entirely. It specifies that if an FBI search turns up a known U.S. person’s information, it must submit a request to the secret Foreign Intelligence Surveillance Court within one business day. The court would then have two business days to weigh in on its legality.

“No,” Burr told The Hill Tuesday, when asked if there was any chance of a warrant requirement in the final legislation. “Doesn’t work. When you don’t have enough to file for a warrant, it’s impossible.”

Schiff, meanwhile, said Wednesday that “we’ve communicated [to the Senate] that we don’t think that can pass the House… [if] there isn’t some sort of warrant requirement for some category.”

Further complicating the picture, new legislation from the House Intel panel could also spark a turf war with the Judiciary Committee, which recently advanced its own renew-and-reform proposal — a bill that includes a tougher warrant requirement that Schiff’s proposal.

“The USA Liberty Act is a carefully drafted, bipartisan bill that safeguards both our national security and strongly protects Americans’ civil liberties,” a Republican Judiciary Committee aide said in a statement, when asked about the Intel bill.

“No other proposal introduced to date adequately accomplishes both of these ideals that are fundamental to our Republic.”

The Judiciary Committee bill requires criminal investigators to obtain a warrant to view Americans’ information in the clandestine database — but not to search the database in the first place.

Supporters of that bill in the last several weeks issued a warning letter to House leadership, extorting them not to support any measure that “weakens the privacy protections built into the USA Liberty Act.”

The bill’s companion measure in the Senate, sponsored by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), is seen as having little chance of passage.

The Intelligence Committee has been in quiet talks with House leadership on the future of the current law, which is set to expire at the end of the year.

The House Intel bill is “informed” by discussions with the Judiciary Committee, an aide said Wednesday, but it is “our bill.”

House lawmakers have long characterized the warrantless Burr legislation as dead on arrival in the lower chamber, where there is a larger group of reform advocates.

But speculation has grown in both chambers that leadership will simply slip a more modest renewal package into must-pass legislation at the end of the year. The FBI fiercely opposes any changes to current authority, which it says is a critical tool to identifying and disrupting terror plots.

Burr told The Hill Tuesday that his bill would “likely” be rolled into a must-pass bill at the end of the year, rather than voted on as a stand-alone measure.

He did not specify what the vehicle could be, though Congress must approve legislation by Dec. 8 to keep the government open.

“Ultimately, this is going to have to be a leadership negotiation,” Schiff said Wednesday. “I would assume leadership will decide whether we mark up a bill and the bill gets attached to something, or we just continue hammering out the final product with the leadership in House and Senate and the final product is incorporated into a different vehicle.”

“I don’t think that’s been decided,” he added.

Known as Section 702 of a package of foreign intelligence amendments passed in 2008, the current law allows the National Security Agency (NSA) to collect the texts and emails of foreigners abroad without an individualized warrant — even when the subjects communicate with Americans in the U.S.

Federal investigators can then search those communications — again without a warrant — in what critics say is a violation of Americans’ Fourth Amendment protections.

“When we tried to look at what’s the gravamen of the concern people have, it was the idea that there was a large and growing database that includes some information about Americans in which law enforcement can simply say, ‘okay, let’s see if there’s evidence of a tax crime, or evidence of fraud involving this U.S. person. We don’t have reason to believe it, but let’s just query the database and see,’” Schiff said.

“This would prevent that from happening, at the same time it would preserve law enforcement’s ability to query that database when they need to do so to protect the public.”

This story was updated at 4:52 p.m.