Bill Would Require an Anti-Government Critic in Surveillance Cases
WASHINGTON — The House Judiciary Committee is preparing to unveil a bill that would require a secretive intelligence court to appoint an outsider to critique the government’s arguments when national security investigators seek wiretap orders that could affect political campaigns or religious organizations.
The draft bill was developed by Representatives Jerrold Nadler of New York and Adam B. Schiff of California, the chairmen of the House Judiciary and Intelligence Committees. It would be the first legislative response to an inspector general report late last year about problems with wiretap applications targeting Carter Page, a former Trump campaign adviser, in the Russia inquiry.
It is not clear whether Republicans will sign onto the legislation, which is expected to be formally introduced on Tuesday and marked up at a Judiciary Committee hearing on Wednesday. A copy began circulating on Monday on Capitol Hill.
The timing of the legislation is driven by the March 15 expiration of three counterintelligence investigation powers. Those powers are different from the wiretap power used in the Russia inquiry under the Foreign Intelligence Surveillance Act, or FISA, but could serve as a vehicle to carry changes to legal rules for national security wiretaps.
But while the House is moving to complete a bill before the deadline, it remains to be seen how the political turbulence surrounding the use of FISA in the Russia case will play out. Some Republicans have discussed pushing for a short-term extension of the provisions — which already happened once — to permit more extensive deliberations about FISA.
As expected, the draft bill would extend all of the expiring provisions until Dec. 1, 2023. They include a famous provision known as Section 215 of the USA Patriot Act, which permits the F.B.I. to collect business records deemed relevant to a terrorism investigation. From 2006 until 2015, Section 215 was the basis of a secret program by which the National Security Agency systematically vacuumed up Americans’ domestic phone logs in bulk.
At the same time, as previously reported, the bill would end legal authority for a defunct system, created in 2015 by the USA Freedom Act, that ended that bulk records program but permitted N.S.A. counterterrorism analysts to gain access to logs of Americans’ phone calls that remained in the hands of telephone companies.
The National Security Agency has already shut down that program because it was expensive, delivered little intelligence of value and experienced frequent rules violations, as when phone companies inadvertently provided more records than the agency had legal authority to gather.
But while the draft legislation is pegged to the March 15 deadline, it is becoming a vehicle for Congress to address broader surveillance issues — including some raised by the inspector general report’s finding of numerous errors and omissions in four applications to wiretap Mr. Page in 2016 and 2017.
For example, the USA Freedom Act created the position of a “friend of the court” whom a FISA judge could appoint to critique the government’s arguments in novel or significant interpretations of surveillance laws. The draft bill would expand the trigger for appointing such a critic to include applications that present “significant concerns with respect to the activities of a United States person that are protected by the First Amendment” — meaning investigations that touch on political or religious activity.
The draft bill would also expand the power of such friends of the court by permitting them to file appeals if the FISA court grants the government’s requests for orders over their objections, and by requiring the government to give them access to all of the materials they need to evaluate a request.
Among other things, the draft bill would make clear that the government cannot use a business records order to collect information that needs a search warrant — which has a higher legal standard — in a criminal investigation. That would ensure that national security investigations follow a 2018 Supreme Court decision, Carpenter v. United States, which required criminal investigators to obtain warrants to get locational data from cellphones.
Adam Goldman and Nicholas Fandos contributed reporting.