Bipartisan effort to reform FISA, end abuses could be iced by GOP outrage at Durham report findings

The Biden administration is trying to garner congressional support to keep surveillance powers under Section 702 of the Foreign Intelligence Surveillance Act

Published: July 2, 2023 11:07pm

Updated: July 11, 2023 8:18pm

Congressional Democrats have joined in bipartisan effort to reform the Foreign Intelligence Surveillance Act amid abuses but GOP outrage over the findings in the Durham Report, including recent calls to impeach Attorney General Merrick Garland over such matters, has likely hurt such efforts. 

Congressional reauthorization of FISA is due in December, with particular focus on Section 702 of the law, which permits the government to conduct targeted surveillance on foreign people outside the U.S., with the assistance of electronic communication service providers, to acquire foreign intelligence information.

Beyond concerns about FISA abuses, lawmakers are also worried about the Foreign Intelligence Surveillance Court, otherwise known as the FISA Court, which oversees requests for surveillance warrants against foreign spies inside the U.S. by federal law enforcement and intelligence agencies.

The rotating group of judges on the court, created by Congress, has been described as a tribunal. And the exact location of their courtroom and the secretive nature of the entire process has raised widespread concerns about transparency.

The most recent, glaring example is perhaps the discovery amid the first and second Justice Department special counsel probes on so-called Russia collusion in the 2016 presidential election was that an FBI lawyer altered a document related to the secret surveillance of former Trump campaign adviser Carter Page.

The defendant, Kevin Clinesmith, pleaded guilty in 2020 to a single false statement charge, admitting that he doctored an email that the FBI relied on as it sought court approval to eavesdrop on Page in 2017.

Republicans argue the findings by the second Justice Department special counsel, John Durham, further prove FISA abuse.

Durham has issued a final report on the matter and late last month testified publicly on Capitol Hill about the matter. 

Also, in May a U.S. court found that the FBI improperly searched for information in a U.S. database of foreign intelligence 278,000 times over several years, including on Americans suspected of crimes.

Amid the criticism, law enforcement and the U.S. intelligence community insist Section 702 is vital because the information collected under the provision protects the United States and its allies from hostile foreign adversaries including terrorists.

Connecticut Democrat Sen. Richard Blumenthal argued at a Senate hearing in March that Section 702 was "instrumental in preventing major catastrophic aggression against our nation and also helping our allies like Ukrainians with intelligence that was extremely critical to pushing back the Russians” in their invasion of Ukraine.

In addition, the Biden administration is trying to garner congressional support to keep surveillance powers under Section 702.

House Judiciary Committee Chairman Jim Jordan has said that Durham's final report shows that there was political bias against former President Trump at "the highest levels of the FBI."

"This Congress needs to change the 702 program, relative to the FBI and to use the appropriations process to get policy language that will help with what we've called the weaponization of these agencies against the American people," the Ohio Republican recently said.

Top Democrats have criticized the Durham report for not resulting in any convictions. 

How members of Congress will decide on FISA's future will likely depend, at least in part, on what FBI Director Christopher Wray has to say about the matter when he testifies before Jordan's committee July 12. 

Wray said after a 2019 inspector general report that was critical of how the FBI handled the collusion probe – known as "Crossfire Hurricane" that he had ordered over 40 corrective steps to address the report’s recommendations.

Prior to Durham's public testimony in the House, top Democrats were calling for FISA reform before it can be reauthorized.

“I will only support the reauthorization of Section 702 if there are significant – significant – reforms," Senate Judiciary Committee Chair Dick Durbin said in early June. "And that means, first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.”

A report from Roll Call noted that progressive Democrats voted against section 702's last renewal in 2018.

In March, the House Intelligence Committee formed a bipartisan working group dedicated to overseeing the reauthorization.

Sen. Lindsey Graham, of South Carolina, the top Republican on the Democrat-led Senate Judiciary Committee, said that Congress needs to build more safeguards into FISA before section 702 gets reauthorized.

“That’s the need for it," he recently said. "The downside is it has been abused, and there’s a warrant requirement to investigate an American citizen for potential wrongdoing. And we don’t want this to be used to get around a warrant requirement."

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