The House unveiled new legislation Tuesday night to reform surveillance authorities used by the FBI to fight terrorism and overhaul the secret Foreign Intelligence Surveillance Act (FISA) court process that has been under the microscope in the Russia probe.
Instead of a clean renewal of the expiring provisions, the USA Freedom Reauthorization Act contains multiple revisions, including enhanced congressional oversight of the FISA process, penalties for those who abuse the Foreign Intelligence Surveillance Court (FISC) process for political purposes and the requirement to have transcripts of court proceedings. The current legislation is slated to expire Sunday.
"The deadline is now upon us and we must act," Rep. Jerrold Nadler, D-N.Y., the chairman of the House Judiciary Committee, said Tuesday evening.
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."
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.
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"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."
The bill seeks to rein in a controversial portion of the surveillance powers, known as Section 215, which gives the government broad powers to demand “business records” from companies in the name of national security investigations. In an effort to better protect privacy, the legislation would prohibit using Section 215 to acquire information that would otherwise require a warrant and would ban obtaining GPS and cell site locations, Nadler said.
The National Security Agency (NSA) previously used Section 215 to collect bulk phone data records, which was highly controversial. In recent years, the bulk metadata collection was outlawed and a narrowly tailored program was allowed, but now that program would be officially ended under the legislation.
“Unfortunately, this program proved technically difficult, widely expensive, and have limited value to the intelligence community," Nadler said. "The government shuttered the program voluntarily last year. This two-decade experiment has run its course and it’s our responsibility to bring it to its formal end.”
Attorney General William Barr and FBI Director Christopher Wray want Congress to renew the crime-fighting tools they argue are important to combatting terrorism.
The FBI calls the provisions vital in the fight against terrorism and stresses that none are tied to the surveillance problems identified by the Justice Department inspector general during the Russia investigation. The inspector general said in a report last year that the FBI made serious mistakes and omissions during four applications to eavesdrop on former Trump campaign adviser Page, including omitting information that did not support their suspicions that Page was an asset of a foreign government.
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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."
The Justice Department IG found in December there was no evidence of political bias or improper motivation in starting the Trump Russia probe. However, the IG report revealed there were at least 17 "significant inaccuracies and omissions" in the Page FISA applications.
The bill would require the government to disclose all significant opinions of the FISA Court within 180 days. The legislation would also require a one-time historical review of the court’s opinions. There will be additional scrutiny for FISA applications and enhanced penalties for misrepresenting information to the FISA court to ensure the accuracy of the applications.
"There are penalties for giving false information to the court," Jordan said. "There are penalties for hiding information from the court, and there are penalties for leaking information about the application to the court."
Some lawmakers on the Rules Committee raised concerns that an attorney general may politicize an investigation.
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The legislation is slated for a vote in the House as soon as Wednesday and lawmakers expressed optimism that Nadler and Jordan could work out a FISA deal, especially after the bitter impeachment fight.
"I'm pleasantly surprised this got done," said Rep. Debbie Lesko, R-Ariz.
The Associated Press contributed to this report.
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