Surveillance fight emerges as intelligence flashpoint

A shadowy court linked to the surveillance of a Trump campaign adviser is throwing a curveball into the debate over whether to extend expiring intelligence programs.

GOP lawmakers, as well as some House Democrats, want to use a mid-March deadline on reauthorizing provisions of the USA Freedom Act to also reform the court created by the Foreign Intelligence Surveillance Act (FISA).

The FISA process has emerged as a flashpoint for President Trump and his top allies after Justice Department Inspector General Michael Horowitz in December found 17 “significant errors or omissions” in the surveillance warrant applications for campaign adviser Carter Page, dating back to 2016.

Those tensions boiled over — and found bipartisan support — Wednesday, when House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) had to postpone consideration of a bill reauthorizing some of the intelligence provisions after Rep. Zoe Lofgren (D-Calif.) threatened to force votes on several FISA-related amendments.

Because Republicans on the committee also support FISA reforms, Lofgren likely would have been able to get at least some of her changes added to the legislation being put forth by Nadler.

A Democratic aide told The Hill that Republicans and Democrats on the committee were expected to get behind Lofgren’s amendments.

The FISA process has long faced bipartisan skepticism. Libertarian-minded GOP senators, as well as progressive lawmakers, argue it doesn’t provide enough transparency for individuals being targeted by the government for surveillance.

That concern found a broader audience among Republicans, who are typically supportive of surveillance, following the Horowitz report.

Horowitz offered a damning assessment of the warrant application process to surveil Page, and the ability of officials to mislead the court, that lawmakers say raises questions about broader abuse of the FISA process. 

Sen. Ron Johnson (R-Wis.), the chairman of the Senate Homeland Security Committee, told The Hill that Horowitz had uncovered a “massive” and “shocking” abuse.

“It needs to be addressed. I think it will be addressed or I don’t think it will pass,” Johnson said. “So I think people need to take that very seriously.”

Sen. Ben Sasse (R-Neb.) acknowledged during a December hearing with Horowitz that the inspector general’s findings had added credence to concerns raised for years by his more surveillance reform-minded colleagues in the Senate.

“Mike Lee has warned me for 4½ years the potential for abuse in this space is terrible, and I constantly defended the integrity and the professionalism of the bureau and of the department that you couldn’t have something like this happen,” Sasse said at the hearing, referring to the Republican senator from Utah.

But congressional leadership in both chambers has shown little interest in trying to make broader FISA reforms as part of the USA Freedom Act debate. Lawmakers are now facing a tight timeline to craft a deal on a topic that is deeply divisive, with some already floating a short-term extension of the intelligence authorities.

The legislation from Sens. Richard Burr (R-N.C.) and Mark Warner (D-Va.) would extend two of three expiring surveillance provisions without making broader FISA changes.

The draft bill yanked by Nadler on Wednesday, the result of collaboration between the House Judiciary and Intelligence committees, would increase the role of an outside lawyer to counter the government and ramp up reporting by the Privacy and Civil Liberties Oversight Board to try to increase transparency on how FISA is being used.

“The committees have worked collaboratively with each other and outside stakeholders to reauthorize necessary FISA provisions that are crucial to national security and make significant reforms to enhance civil liberties and privacy protections,” a House Intelligence Committee official told The Hill. “The draft bill does both, implementing a variety of progressive reforms while ensuring we can continue to protect our national security.”

“We’re going to continue to work with all parties towards that goal,” the official said.

But progressives as well as Republicans argued the House measure didn’t touch on the broader privacy and transparency concerns about the surveillance court.

Attorney General William Barr told Senate Republicans during a closed-door lunch this week that he would use his own rulemaking authority to enact changes to the court that don’t require congressional approval. Those changes have the backing of Senate Republicans, who described them as being along the lines of the corrective actions Horowitz recommended in his report.

“He went over his recommendations and some internal reforms about FISA warrant applications and surveillance technology being used … that I think are consistent with what Horowitz is recommending,” Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said about Barr’s pitch.

Among Horowitz’s recommendations were urging the Department of Justice (DOJ) and the FBI to revise the FISA process to ensure that the DOJ office responsible for representing the administration before the court can obtain “all relevant and accurate information.” Horowitz also recommended the Justice Department and FBI evaluate which “Sensitive Investigative Matters,” cases that involve public officials or candidates, should require the notification of a senior DOJ official.

Graham is planning to do a deep dive into the FISA process, including the Page warrant and the start of the FBI’s investigation into Russia’s election meddling and the Trump campaign.

That includes starting closed-door depositions next week, according to Graham, with the plan being to eventually work up to public hearings. In addition to more than 20 current officials, Graham says he wants to bring former FBI Director James Comey, former Deputy Attorney General Rod Rosensten and former Deputy Attorney General Sally Yates before his committee.

Graham said the Senate could take up FISA-related legislation separate from the USA Freedom Act debate, but in the meantime he wants to “find out what happened” with the Page application.

“You start at the bottom and work your way up. Try to find out people who were in charge of the investigation day-to-day,” he added.

But it’s unclear if internal DOJ reforms, the promise of an investigation and potential legislation down the road will be enough to win over both libertarian-minded GOP senators and Trump’s House allies who are clamoring to use the surveillance reauthorization fight to enact broader FISA reforms.

“Three provisions of FISA are set to expire on March 15th. Congress should not reauthorize them without substantially reforming FISA. Our intelligence-gathering agencies need to focus on foreign agents and terrorists, and should not be spying on U.S. citizens,” Lee said in a tweet on Wednesday.

He made a “long case” during the closed-door lunch with Barr about making additional statutory changes to the FISA process, including strengthening outside representation for individuals targeted by the surveillance applications.

Rep. Doug Collins (Ga.), the top Republican on the House Judiciary Committee, added that the expiring intelligence authorities should not be reauthorized without addressing broader FISA reforms.

“The status quo is unacceptable,” he said. “We must reform our FISA system in order to restore the American people’s confidence in our law enforcement and intelligence communities and ensure what happened to Carter Page and the Trump campaign never happens again.”

Emily Birnbaum contributed.