House Reaches Deal to Overhaul Surveillance Laws

WASHINGTON — House leaders on Tuesday struck a bipartisan deal to overhaul surveillance laws just days before a trio of F.B.I. investigative tools expires, raising the possibility of a last-minute breakthrough in a politically complex debate over civil liberties and national security.

The changes would install new privacy protections — including adding a skeptical voice to secret court deliberations when the F.B.I. wants to eavesdrop on Americans under certain circumstances — but stop short of more sweeping limits favored by some civil libertarians in both parties that are viewed skeptically by national security officials and centrist lawmakers.

If it becomes law, the bill would represent Congress’s response to a damning inspector general report that uncovered numerous errors and omissions by the F.B.I. in applications under the Foreign Intelligence Surveillance Act, or FISA, to wiretap Carter Page, a former Trump campaign adviser, during the early stages of the Russia investigation.

But even if the House passes the legislation, the bill could face obstacles in moving quickly through the Senate, where it would need 60 votes to overcome any filibuster. It would also need to be signed by President Trump, who has been unpredictable on surveillance policy issues while displaying a hazy understanding of their details.

Speaker Nancy Pelosi and the House Republican leader, Representative Kevin McCarthy of California, abruptly unveiled the bill, the “USA FREEDOM Reauthorization Act of 2020,” after days of intense negotiations. They set a vote for Wednesday.

Much of the revised bill — co-sponsored by Representatives Jerrold Nadler of New York and Adam Schiff of California, the chairmen of the House Judiciary and Intelligence Committees — is similar to the legislation that the Judiciary Committee had been set to mark up two weeks ago, before a rebellion by liberal lawmakers seeking more drastic changes derailed it. But it contains some tweaks, including enhanced criminal penalties for abusing surveillance powers.

In a rare collaboration, Mr. Nadler and Representative Jim Jordan of Ohio, a strident ally of Mr. Trump who is becoming the top Republican on the Judiciary Committee, sat next to each other in the Rules Committee on Tuesday to jointly press for its passage.

“This bill does not go far enough, but it does represent real reform,” Mr. Jordan said. “These reforms have long been necessary but have been especially warranted in recent years given the F.B.I.’s spying on the Trump campaign affiliate Carter Page and the affront to First Amendment rights that this represented.”

Congress has been debating whether and how it should tighten FISA limits while it extends three F.B.I. surveillance and investigative tools enacted after the Sept. 11 attacks that are set to expire on Sunday. While none of those tools were involved in the problematic Page wiretap applications, they have been caught up in the debate because both traditionally civil liberties-minded lawmakers and many Trump allies see any extension legislation as a vehicle for broader FISA changes.

Surveillance talks have been topsy-turvy in recent weeks. House Democrats at one point pushed a bill that would have extended the expiring collection tools and instituted more modest changes, but it collapsed when a senior Democratic congresswoman said she would offer amendments imposing significantly more stringent privacy protections to targets of counterterrorism and espionage investigations.

Senate Republican leaders, including Senator Mitch McConnell of Kentucky, the majority leader, had their own intentions — a straightforward reauthorization of the existing powers through at least the end of the year — that Attorney General William P. Barr supported. But Mr. Trump undercut them by insisting he would not sign any measure that left the system largely intact.

The chairman of the Senate Intelligence Committee, Richard M. Burr, Republican of North Carolina, had been skeptical of more aggressive proposals for FISA changes but said on Tuesday that if Mr. Barr endorsed the legislation, he would try to move it quickly.

“If he signed off on it, it would probably be something that we would be comfortable with,” Mr. Burr told reporters.

Mr. Barr, who led talks with lawmakers on behalf of the administration, backs the bill, according to a Justice Department official. Mr. Barr had told Republicans that he himself could impose new oversight rules on the F.B.I.’s FISA process should lawmakers reauthorize the expiring provisions without including any.

Lawmakers from both parties objected to his proposal, though senior Justice Department officials said the bill left open the possibility that Mr. Barr could eventually impose additional limits on the F.B.I.’s national security surveillance.

Senator John Thune of South Dakota, the No. 2 Republican in the chamber, said its leaders would try to push through the House agreement as well before they left town later this week for a weeklong recess.

But they are likely to face opposition from at least two Republicans, Senators Rand Paul of Kentucky and Mike Lee of Utah, who believe the changes fall short of protecting civil liberties and could drag out the approval process for days.

Mr. Paul denounced the bill on Twitter as “weak sauce” and a “big disappointment.”

Mr. Thune acknowledged the potential roadblocks, and senators might consider a short-term extension of the expiring authorities if they cannot pass the House measure this week.

The bill would extend the three expiring tools — like the F.B.I.’s ability to get FISA court orders for business records deemed relevant to a national security investigation — while ending legal authority for an expensive, dysfunctional and defunct N.S.A. system that had allowed counterterrorism analysts to swiftly access logs of Americans’ phone calls.

The bill would also expand when FISA judges — who normally hear only from the government when deciding whether to grant a surveillance application — should appoint an outsider to critique the government’s position. Currently, judges are supposed to do so only when addressing a novel and significant question of interpreting surveillance law.

Under the bill, the FISA court would also be directed to consider appointing a government critic when an application “presents exceptional concerns” about protecting the First Amendment rights of a surveillance subject — a formulation that could apply to investigations touching on political campaigns or religious activity.

Some House lawmakers have wanted to go further, requiring an outside critique every time an American is the target of national security surveillance, no matter how routine. Because there are hundreds of such cases a year, that change would have had far greater operational consequences for investigators.

The Justice Department had objected to the broader proposal, senior officials said, over concerns that it would jeopardize national security.

The bill would not make a change that many civil liberties and privacy groups have advocated: letting defense lawyers read FISA applications if their clients are prosecuted on the basis of evidence derived from such wiretaps or searches, as defense lawyers are permitted to do in ordinary criminal cases.

But it would also expand criminal penalties issues surrounding misuse of FISA, raising from five to eight years the prison sentence for engaging in electronic surveillance without following procedures.

The bill would also outlaw the disclosure of the existence of an application or classified information contained in it, as well as knowingly making a false declaration before the FISA court. The move would be more symbolic than substantive because those were already illegal.

And it would make clear that the government cannot use a business records order to collect information — like cellphone location data — that in a criminal investigation requires a search warrant, which has a higher legal standard.

The F.B.I. has already overhauled its FISA procedures to ensure that all mitigating evidence that undercuts the bureau’s belief that a surveillance target is probably an agent of a foreign power reaches the FISA court. The court has banned, at least temporarily, agents who worked on the Page applications from appearing before its judges.

But the unanswered question is how Mr. Trump will respond to the bill, which is likely to be seen as bringing to a close any congressional overhaul in response to the problems with the Page wiretaps. Mr. Trump continues to nurture a conspiracy theory that the Russian election interference investigation was a high-level scheme by the F.B.I. to undercut him for political purposes, and that the monitoring of Mr. Page — which began after Mr. Page had left the campaign and was renewed three times in 2017 — was a piece of that purported plot.

Katie Benner contributed reporting.



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