If Republicans have any appetite for reining in domestic surveillance that they describe as a massive violation of the civil liberties of Donald Trump’s associates, it wasn’t on display when FBI Director Christopher Wray made his first appearance on Capitol Hill since the damning Justice Department inspector general’s report into the Trump-Russia investigation.
That’s a real issue in light of next month’s expiration of several intrusive surveillance measures contained in the 2001 PATRIOT Act’s Section 215. One of those measures, the business records provision, permits broad FBI collection of records from service providers about an investigative target without that target ever knowing about it.
But few Republicans at Wednesday’s hearing who pronounced themselves offended by FBI surveillance abuses in the Trump-Russia probe, known as Crossfire Hurricane, told Wray that they will cost him Section 215. It was reminiscent of how Trump and House intelligence committee Republicans spent 2017 railing against surveillance on Trump’s allies before reauthorizing the Foreign Intelligence Surveillance Act’s single most expansive provision in January 2018.
Wray, testifying before the House Judiciary Committee, was in for rough treatment from the panel’s Republican members. Hanging over his head was Inspector General Michael Horowitz’s findings that the FBI misrepresented information to the secret surveillance court relevant to continuing its surveillance on Trump campaign adviser Carter Page.
But Wray had a script and he stuck to it. He refused to characterize any aspect of Horowitz’s investigation when legislators of both parties attempted soliciting a soundbite that could help or hurt Trump. Instead, he reiterated variations on a theme: Horowitz’s report “described conduct that is unacceptable and unrepresentative of the FBI as an institution.”
Several of the panel’s Republicans, having read Horowitz describe FBI officials misrepresenting their basis for continuing surveillance before a court that almost always hears exclusively from the government, found that frustrating. Rep. Kelly Armstrong (R-ND) decried the FBI’s “systemic issues.” Rep. Andy Biggs (R-AZ) referenced the FISA Court’s Judge Rosemary Collyer, who said the Horowitz report “calls into question whether information contained in other FBI applications is reliable.” More bluntly, California’s Tom McClintock told Wray, “I don’t trust your agency anymore.”
But that lack of trust ends where the PATRIOT Act begins. The committee’s ranking Republican, Rep. Doug Collins (GA), said “we must reauthorize” the expiring PATRIOT provisions, even as Collins was a rare Republican who contextualized the 1978 Foreign Intelligence Surveillance Act as a congressional response to the intelligence agencies’ unconstitutional surveillance of peaceful protesters and others. Wray took Collins’ opening to agree that the PATRIOT provisions were “not related” to the Carter Page case.
That’s true. But it overlooks Judge Collyer’s broader point about how the Page case indicts the FBI’s trustworthiness in its other, voluminous surveillance applications to her court. And FISA court-authorized surveillance isn’t the outer limit of the FBI’s surveillance powers. In October, it was revealed that the court found the FBI’s warrantless searches for Americans’ data captured in National Security Agency dragnets were so massively overbroad as to threaten constitutional freedoms.
Collins, to his credit, persisted in asking Wray if there needed to be a “macro-level” examination of FISA. But Wray brushed that off. The director said he was “leery of any kind of change that would have any unintended consequences.”
That was about it for most Republicans on the committee. They wanted instead for Wray to commit to firing FBI officials, often denounced by Trump, involved in the Trump-Russia investigation, most of whom have already departed the bureau. “I hope you’ve considered there might be criminal culpability,” Biggs told Wray. “A lot of people in my district have totally lost confidence” in the FBI, said Arizona’s Debbie Lesko, who further suggested that that “maybe you [could] make it public” when agents involved in the Russia investigation get disciplined.
A partial exception came from Armstrong, who noted that “FISA reauthorization” was coming up, as did Jim Jordan (R-OH), but Jordan quickly veered away from endorsing PATRIOT Act expirations. A more substantial exception came from Virginia Republican Ben Cline, who pointed to the March PATRIOT expirations and said, “It is paramount that we ensure American civil liberties and due process are in no way inhibited.”
Wray told Cline that returning to the higher, pre-PATRIOT Act standards, which demanded that the FBI possess specific, articulable facts that domestic surveillance targets were agents of a foreign power, “would be a sad day for America.”
Civil libertarians expressed their own frustration that legislators focused their ire on the small cohort of Americans tied to Trump whose liberties were jeopardized while ignoring the untold millions of Americans who for a generation have lived with their privacy at risk from their own security apparatus.
“Ranking Member Collins asked FBI Director Wray whether people’s civil liberties are now protected under FISA. As any civil liberties advocate will tell you, the answer is an emphatic ‘no,’” said Sean Vitka, counsel for digital-rights group Demand Progress. “The DOJ’s Inspector General report did reveal disturbing issues that need to be resolved, but Congress, and in particular the House Judiciary Committee, is wrong to remember Carter Page but forget the millions of innocent people who have been wrongfully spied on under this and previous administrations.”
Vitka backs a bipartisan bill proposed by Sen. Ron Wyden (D-OR) that puts substantial restrictions on information the FBI can collect and use under Section 215 and expands safeguards on related surveillance authorities. “In fact, the House Judiciary Committee should make it clear to surveillance hawks that nothing weaker than the Safeguarding Americans' Private Records Act will advance to the floor under its watch,” he said.
Jake Laperruque, of the Project on Government Oversight, said “concerns about the Carter Page FISA warrants” aided momentum for surveillance reform like the Wyden bill.
“If the members talking about Crossfire Hurricane now want their complaints to be taken seriously,” Laperruque said, “this is the type of reform legislation they’ll need to support.”