Days after the Justice Department controversially dropped charges against Mike Flynn, Senate GOP Majority Leader Mitch McConnell (R-KY) is set to expand a highly politicized Justice Department’s surveillance authority during a vote this week to renew the 2001 PATRIOT Act.
Under cover of redressing what President Donald Trump and his allies call the FBI’s “witch hunt” over collusion with the Kremlin, McConnell, via an amendment to the PATRIOT Act, will expressly permit the FBI to warrantlessly collect records on Americans’ web browsing and search histories. In a different amendment, McConnell also proposes giving the attorney general visibility into the “accuracy and completeness” of FBI surveillance submissions to the secret Foreign Intelligence Surveillance Act (FISA) Court. Versions of the amendments circulating Monday were shared with The Daily Beast.
Taken together, privacy advocates consider McConnell’s moves an alarming expansion of Attorney General Bill Barr’s powers under FISA, a four-decade-old process that already places the attorney general at the center of national-security surveillance. It also doesn’t escape their notice that McConnell is increasing Barr’s oversight of surveillance on political candidates while expanding surveillance authorities on every other American. One privacy activist called McConnell’s efforts “two of the most cynical attempts to undermine surveillance reform I've ever seen.”
Sen. Ron Wyden (D-OR) said that Barr, who has been deeply involved in investigations of interest to Trump, could authorize an investigation into a political rival, which could then unlock the internet-spying powers McConnell wants to grant the FBI.
“Under the McConnell amendment, Barr gets to look through the web browsing history of any American—including journalists, politicians, and political rivals—without a warrant, just by saying it is relevant to an investigation,” said Wyden, who has been trying to ban warrantless surveillance on such records.
A vote to restore expired provisions of the Patriot Act, the vehicle for McConnell’s amendments, could come as soon as Tuesday or Wednesday.
Barr has come under withering criticism from ex-Justice Department officials for corrupting his office on Trump’s behalf, starting with Robert Mueller last year. On Sunday, Mary McCord, a former senior department national-security official, accused Barr ally Timothy Shea of misrepresenting her position on the Flynn investigation in his brief for dropping the charges. A day later, former Roger Stone prosecutor Jonathan Kravis, a public-corruption expert, wrote that Barr had “betray[ed] the rule of law” by “directly intervenin[ing] to benefit the president’s associates.”
McConnell’s amendment blocks the FBI from seeking the “content” of web browsing and searching conducted by Americans. But it explicitly permits the warrantless collection of “Internet website browsing records or internet search history records.” Barr and other attorneys general approve guidelines for conducting such surveillance.
Wyden and GOP colleague Steve Daines of Montana have been pushing to restrict warrantless web-browsing data collection by the intelligence agencies. Wyden considers McConnell’s amendment egregious.
“The reference to ‘content’ in the McConnell amendment is meaningless, since its application to web browsing has never been settled in the courts,” Wyden told The Daily Beast. “That’s just an invitation to Barr to engage in more secret interpretations of the law, which have led to abuses again and again.”
That’s a reference to how the NSA and Justice Department, from 2006 until 2015, shoehorned the bulk collection of Americans’ phone records into part of the Patriot Act. As well, in the past, the Justice Department has interpreted the PATRIOT Act to permit warrantless browser collection, but that's not been blessed by an explicit act of Congress.
It’s not the limit of McConnell’s changes to FISA through the Patriot Act vote.
McConnell would mandate that Barr perform an annual review of the FBI’s FISA submissions for “accuracy or completeness,” speaking to the now-documented withholdings FBI officials made for re-upping surveillance on Trump campaign aide Carter Page. Barr and his successors would present the congressional committees on judiciary and intelligence with a report on his findings each April.
Additional oversight of the FBI has merit to it, considering that Justice Department inspector general Michael Horowitz recently found widespread flaws in the FBI’s FISA applications, far beyond those relevant to Trump or his allies.
But there’s a competing proposal, from the civil libertarian Senators Mike Lee (R-UT) and Patrick Leahy (D-VT), that puts oversight and review of those FBI surveillance applications in the hands of the comparatively neutral FISA Court and its amicus, an attorney who challenges the government’s surveillance submissions. They, rather than the attorney general, would get to review exculpatory evidence on a proposed surveillance target.
McConnell would also block expansion of the amicus’ authority. Lee and Leahy propose to involve the adversarial attorney in proposed surveillance on “a domestic religious or political organization”; a “domestic public official or political candidate” or their staff; or the news media. McConnell instead authorizes an amicus before the court only in cases that “targe[t] a campaign for Federal office or an application that targets a United States person when the application relies for its criminal predicate on only the provisions of the Foreign Agents Registration Act.”
Neema Singh Giuliani of the ACLU said it was bizarre to “create an amicus to participate when targeting political candidates, but we’re not going to provide that same oversight in cases involving religious organizations, domestic news media or everyday individuals who are facing new or significant civil rights concerns. It’s hard to look at that amendment and conclude it’s intended to really address not just problems exposed by the Carter Page report but the subsequent IG audit.”
“McConnell is literally trying to take a privacy safeguard designed for the press and religious groups and instead give it only to politicians and people suspected of being foreign agents. He's also trying to sneak warrantless surveillance of internet and search histories into an amendment that claims to prohibit it,” added Sean Vitka, the senior policy council with activist group Demand Progress. “These are two of the most cynical attempts to undermine surveillance reform I've ever seen, and they threaten to make a Patriot Act reauthorization even worse, after a process that has so far successfully prevented any member of Congress from fixing the underlying bill.”
Section 215 of the 2001 Patriot Act mandates records providers turn over “tangible things” “relevant” to an ongoing investigation–which McConnell’s amendment would extend to web-browsing and search-history records. It and other provisions of the Patriot Act expired last month after McConnell couldn’t reach an agreement to pass a House-approved Patriot reauthorization that many privacy advocates hated.
Giuliani said McConnell’s amendment “can be read that some type of collection [on internet records] is appropriate, and leaves it up to leadership at the Justice Department. But the goal is not to leave this up to a DOJ determination, regardless of what administration you’re in, but giving the sense that search and browsing history is something you can't collect under 215.”
McConnell’s Senate office did not immediately respond to a request for comment. Neither did a Justice Department representative.
On Monday, a coalition of left and right civil-rights groups, including the NAACP and FreedomWorks, circulated a letter to lawmakers urging restraints on surveillance in line with what Lee, Leahy, and Wyden are proposing. The groups agreed that Horowitz’s report laid bare “systemic deficiencies” within the FBI’s surveillance practices.
“The McConnell amendment hands vast surveillance powers to Attorney General Barr at a moment when he is accelerating the corruption of the Department of Justice to serve Donald Trump’s political whims,” said Wyden.
NOTE: This piece has been updated to clarify that the Justice Department has previously interpreted the PATRIOT Act to permit warrantless browsing-records collection, something Congress has not explicitly authorized.