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Durham testimony further ignites GOP to reform FISA. Will Biden and Democrats join the effort?

Key Democrats have expressed support for FISA reform but their party's criticism of Durham and his report at Thursday's hearing could complicate the effort

Published: June 21, 2023 11:43pm

Updated: June 22, 2023 12:31am

House Republicans appeared Wednesday to be even more motivated to pass sweeping reform of federal surveillance law after special counsel John Durham's six-hour public testimony, but they will need support from President Joe Biden and Senate Democrats.

Democrats have this year expressed support for reforming the The Foreign Intelligence Surveillance Act, but House Democrats' criticism of Durham and his 48-month investigation at the hearing could throttle such efforts.

Durham was appointed as special counsel in 2020 to investigate the origins of the FBI's basis for its so-called Russia collusion probe.

In his 306-page final report last month, Durham concluded that the bureau lacked sufficient evidence to launch the probe into potential collusion between the 2016 Trump presidential campaign and Russia.

On Wednesday, Tennessee Rep. Steve Cohen, a Democrat on the House Judiciary Committee before which Durham testified, told Durham that his reputation has been "damaged" by accepting the special counsel position to investigate the matter.

“You got nothing," he said, arguing his appointment was "all set up" to tarnish the findings of previous special counsel Robert Mueller's Russia investigation. 

Durham shot back, saying, "My concern about my reputation is with the people I respect, my family, and my Lord. And I'm perfectly comfortable with my reputation with them, sir."

New York Rep. Jerry Nadler, the committee's top Democrat, was also critical of Durham and his report.

"You only filed three criminal cases. You only brought two cases to trial, correct?" Nadler asked Durham, who answered yes. "You lost all the cases you brought to trial."

Committee Chairman Rep. Jim Jordan, an Ohio Republican, said on Tuesday before Durham's testimony that the hearing would help expose the FBI's misuse of the 1978 Foreign Intelligence Surveillance Act – which sets out procedures for physical and electronic surveillance and the collection of foreign intelligence information.

It also established a special federal court to consider issuing search warrants under the surveillance act.

On Wednesday, Jordan said the act was used in the FBI's Russia collusion probe to "spy on an American citizen associated with the [Trump] campaign."

He also said in his opening remarks: "Over the next few hours, we're going to hear the facts and details about the whole false Trump Russian narrative ... and hopefully, hopefully, it will help change things at the Department of Justice regardless of what the Biden administration and the Garland Justice Department do.

"I know what Republicans in the House are committed to doing. We will work to dramatically change the FISA law. And we will do everything we can in the appropriations process to stop the federal government from going after the American people."

Democrats such as Sen. Ron Wyden have previously signaled support for FISA reform.

Last month, the Oregon lawmaker responded to reports of the FBI misusing the FISA process on Jan. 6 suspects, arrested Black Lives Matter protesters and others.

"These abuses have been going on for years and despite recent changes in FBI practices, these systematic violations of Americans’ privacy require congressional action," he said.

Like Jordan, Wyden is particularly focused on a FISA provision titled Section 702, which allows the U.S. government to conduct targeted surveillance of foreign persons outside the United States, with the assistance of electronic communication service providers to gather foreign intelligence information.

"If Section 702 is to be reauthorized, there must be statutory reforms to ensure that the checks and balances are in place to put an end to these abuses," Wyden previously said.

Still, considering congressional Republicans' push for sweeping reform, especially during a presidential election cycle, the passage of any such measures in the Democrat-controlled Senate will likely be an uphill challenge. 

In addition, the White House has not been supportive of reforming FISA, calling for the reauthorization of the law.

"The Biden-Harris Administration strongly supports the reauthorization by Congress of Section 702 of the Foreign Intelligence Surveillance Act, a vital intelligence collection authority, which the attorney general and the director of National Intelligence conveyed today in a joint letter to congressional leadership," National Security Advisor Jake Sullivan said in February. 

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