Feb 23, 2020 - Politics & Policy

Inside the fight over FBI surveillance powers

Carter Page

Carter Page. Photo: Artyom Korotayev\TASS via Getty Images

Over the past year, President Trump has told senior administration officials, including Attorney General Bill Barr, that he wants a major overhaul of national security surveillance powers and the secret court that approves them.

Behind the scenes: In one such discussion last year about the need to reauthorize government authorities to surveil U.S. citizens, Trump went so far as to say he'd rather get rid of the Foreign Intelligence Surveillance Act (FISA) altogether.

  • Barr had argued it was necessary, for national security reasons, to reauthorize the current surveillance laws without any changes.
  • Trump responded, "I trust you, Bill, but if it was up to me, we'd get rid of the whole thing," per a source familiar with the conversation. Trump was especially exercised about the process that the FBI used to wiretap his former campaign foreign policy adviser Carter Page.

Why it matters: Key measures in FISA — including the business records provision, Section 215 — are set to expire on March 15.

Between the lines: Trump's discussions came several months before the Justice Department Inspector General released a scathing report about the abuses of the FISA process involved in the surveillance of Page.

  • The Inspector General said the abuses were so profound, he had decided to open a full review of the FISA warrant process.
  • Barr has since acknowledged that FISA needs targeted reforms.
  • Trump has repeatedly told aides that he never wants what happened to him in the Russia investigation to happen to any other president or their families. There is no evidence the FBI used FISA authorities to target any of the Trumps. And aides have since interpreted Trump's position to be that he wants major reform of FISA rather than getting rid of it altogether.

Since at least last summer, officials in the Trump administration have been hotly debating the best way to turn Trump's instincts into policy. Domestic Policy Council head Joe Grogan has led an internal process to develop reform options, per sources briefed on the effort.

  • John Bolton, while Trump's national security adviser, led the charge for a straight renewal of surveillance powers and was supported at the time by Barr, per a source with direct knowledge of the internal conversations. They had another ally in Trump's former director of National Intelligence Dan Coats.
  • In one of his last acts on the job, in August 2019, Coats sent a letter to Capitol Hill that said the Trump administration wanted Congress to permanently reauthorize key surveillance provisions in the USA Freedom Act. These included the "roving wiretap" authority and the seizing of business records from companies.
  • This stance cementing broad government surveillance power as the affirmative position of the Trump administration was news to some senior officials who'd been listening to Trump's jeremiads against all manner of government surveillance.

Members of Congress — including Republican Sens. Mike Lee and Steve Daines and Democratic Sens. Ron Wyden and Patrick Leahy — have been working on legislation to reform FISA.

  • Barr will attend Tuesday’s GOP Member lunch, where he will discuss the upcoming debate on reauthorizing certain expiring intelligence provisions, according to a source familiar with the planning.
  • Reauthorization of these certain programs is a priority for both Barr and Senate Majority Leader Mitch McConnell. 
  • Lawmakers are weighing a number of potential reforms, per a source familiar with the talks. They include mandatory, random audits of FISA applications by the Inspector General, ending the Call Detail Records program, requiring the FBI turn over exculpatory evidence when seeking a FISA warrant, and appointing amici in all "sensitive investigative matters" who can access all FISA court documents.
  • Sen. Rand Paul, a longtime critic of government surveillance, has also shaped Trump's thinking on the issue, per sources briefed on their conversations.

Yes, but: This wouldn't be Trump's first bait-and-switch on FISA. On Jan. 11, 2018, hours before a vote on warrantless FISA surveillance, Trump tweeted that the authorities had been used "to so badly surveil and abuse the Trump Campaign."

  • 90 minutes later, under urgent pressure from congressional leaders and his senior staff, Trump walked back the criticism, and the reauthorization vote passed without any major wins for reform advocates.
  • Rolling back surveillance powers is notoriously difficult, and the Intelligence Community usually gets its way.
  • The White House and Justice Department did not respond to requests for comment.

Trump administration officials have been deeply conflicted on the subject. Barr has been frustrated with Grogan's involvement and believes the Justice Department can make necessary FISA reforms without Congress intervening, according to a source familiar with Barr's thinking.

  • Grogan and other administration officials have expressed doubts that Trump would accept anything less than major legislative changes to FISA powers.

The bottom line: The debate over FISA reforms has always pitted national security hawks against civil liberties advocates. But Trump's personal feelings about the FISA court complicate these conversations and have spawned a coalition of civil-libertarian-Trump-defenders that could reshape national security surveillance laws.

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