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Politics

FBI power to eavesdrop on Americans likely to be curtailed

William Barr
Atty. Gen. William Barr, pictured here testifying before Congress last year, supports the legislation that would limit surveillance powers.
(Andrew Harnik / Associated Press)

The fallout over the Russia investigation has created an unusual bipartisan alliance to limit the government’s surveillance powers, a longtime goal of civil libertarians now promoted by Republicans who believe President Trump was unfairly targeted.

The House approved legislation on Wednesday, 278-136, that would make it harder to eavesdrop on U.S. citizens and foreigners under the Foreign Intelligence Surveillance Act, better known as FISA. The measure now goes to the Senate, where one member’s opposition could still prevent it from reaching Trump for his signature before some of the act’s powers expire on Sunday.

Senate Republican leaders, including Majority Leader Mitch McConnell of Kentucky, issued a statement of support. “This legislation balances the need to reauthorize these critical authorities with the need for tailored reforms to increase accountability,” they said.

Surveillance authority became hotly controversial after it was revealed that the FBI used it to eavesdrop on Carter Page, a former foreign policy advisor to Trump’s campaign, during the 2016 race. A subsequent report from the Justice Department inspector general said law enforcement officials had mishandled the case by withholding information from the secret court that approved the FISA warrant and renewed it three times.

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The bill calls for restricting the government’s ability to obtain cellphone records in national security investigations. It would require the FBI to certify that all relevant information has been provided to the court and to appoint compliance officers to ensure applications for warrants are handled appropriately.

The attorney general would be required to approve any surveillance of federal elected officials or candidates for federal office.

If the proposals become law, it would reflect a rare moment of bipartisan compromise for factions that battled over the Russia investigation and the subsequent impeachment of Trump for his dealings with Ukraine.

“These reforms are an extraordinary accomplishment in a period of divided government,” said House Minority Leader Kevin McCarthy (R-Bakersfield).

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Rep. Adam B. Schiff (D-Burbank), the chair of the House Intelligence Committee, said the legislation “makes a number of critical and important reforms to strengthen civil liberties and privacy protections ... while simultaneously protecting the national security of the United States.”

Atty. Gen. William Barr, who has worked with lawmakers to nail down details of the proposals, said Wednesday that he supports the legislation.

“The bill contains an array of new requirements and compliance provisions that will protect against abuse and misuse in the future while ensuring that this critical tool is available when appropriate to protect the safety of the American people,” he said in a statement.

Civil liberties advocates were disappointed, however.

“It’s a weird political moment. Because of the Carter Page surveillance, Republicans are on board with civil liberties protections,” said Elizabeth Goitein, director of the Liberty and National Security program at the Brennan Center for Justice, a public policy institute at New York University School of Law. “And yet, what came out of it was something that frankly gave the Republicans more of what they wanted and gave progressive lawmakers very little of what they’ve been pushing for.”

Congress missed a chance to limit the government’s ability to siphon off the electronic data of Americans, she added. “This is a wasted opportunity. It’s that simple.”

The American Civil Liberties Union called the legislation a “half measure.”

“With only minimal improvements over current law, the reforms in this backroom deal fall far short of what is needed to protect our privacy rights,” Christopher Anders, its deputy political director, said in a statement. “This proposal will continue to allow secret courts to issue secret orders and the federal government will continue spying on Americans without the kind of oversight and adversarial process that all Americans should expect of our government and our courts.”

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It’s unclear whether libertarian conservatives in the Senate, notably Sen. Rand Paul (R-Ky.), will decide to stall the debate and allow the surveillance powers to expire. “Weak sauce reform,” he tweeted after the House vote. “This doesn’t fix the problem! Let’s do real reform now!”

Trump also remains a wild card. Ever since his Senate acquittal after impeachment by the House for his conduct toward Ukraine, he’s been eager to strike back at the law enforcement and intelligence agencies that he believes wronged him during the Russia investigation.

During the 2016 race, the FBI began investigating Moscow’s efforts to boost Trump’s campaign by releasing emails hacked from Democrats and spreading misinformation on social media. Page was the target of surveillance because of his contacts with Russians, but he was never charged with any wrongdoing.

Republicans have long portrayed this as evidence that investigators were biased against Trump, particularly because they included Democratic-funded opposition research in the application for a warrant.

The inspector general’s report dismissed that concern but blasted the FBI for other problems, identifying 17 significant errors and omissions.

“We are deeply concerned that so many basic and fundamental errors were made by three separate, hand-picked investigative teams,” wrote Michael Horowitz, the inspector general tasked with providing independent oversight. He referred “all employees” involved in obtaining the warrants for disciplinary review.

Frank Montoya, a former FBI agent who specialized in national security investigations, said the House bill would “make it more difficult to run cases on” U.S. citizens and residents.

“This is fallout that the bureau deserves for how shoddily they did that work” in the Page case, Montoya said. “There is some frustration that the rules are going to be stricter but at the same time these are the lessons of what happens when you half-ass a FISA application.”


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