A provision in the House Democrats’ surveillance bill is causing concern that it could give Attorney General William Barr greater influence over counterintelligence investigations of political opponents.
The PATRIOT Act reauthorization, released late afternoon Tuesday, requires the attorney general to vouch to the secret surveillance panel known as the FISA Court that investigations of any “elected Federal official or a candidate in a Federal election” are aboveboard.
Like other aspects of the bill, the measure responds to Republican outrage over the FBI’s 2016 counterintelligence investigation of Donald Trump’s campaign. It mandates that the attorney general provide written authorization to the FISA Court that they approved such an investigation. Putting the nation’s top law enforcement official on the hook for the most controversial sort of investigations is supposed to be an accountability mechanism.
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Proponents of the bill consider the measure formulaic, even redundant with longstanding Justice Department measures requiring top-level sign-off on politically sensitive cases. Most progressive opposition to the PATRIOT Act reauthorization centers around its continued power to let U.S. intelligence warrantlessly access data like people’s web search and browsing histories. But some progressives are worried that Barr, who is involved in Rudy Giuliani’s attempts at digging up Ukranian dirt on Democratic frontrunner Joe Biden, will weaponize the measure.
“Congress has the chance to require independent, nonpartisan oversight of the FISA process, as proposed in multiple bipartisan bills. Instead, House leaders seem intent on putting into law that FISA surveillance of politicians and candidates will be directly under the control of Attorney General Barr,” Sen. Ron Wyden (D-OR), a member of the Senate intelligence committee, told The Daily Beast.
Jake Laperruque, a surveillance expert with the Project on Government Oversight who considers other elements of the bill to be important privacy safeguards, said he would have preferred the bill strengthened the adversarial process before the FISA Court. The so-called “amicus” has a limited role in objecting to government surveillance submissions that risk creating new precedents.
“Lawmakers focused on FISA Court reforms would have been better served by prioritizing the amicus,” Laperruque said. “Having a strong special advocate for the court is a far better watchdog to prevent abuse than a potentially partisan attorney general. I can’t think of a better example of why than how Bill Barr has warped the attorney general role into playing politics for the president.”
Sources close to the bill’s architects say worries like that misunderstand surveillance law and the Justice Department’s existing guidelines. Last month, prompted by a scathing Justice Department inspector general report on the Trump/Russia investigation, Barr issued new rules requiring him to personally sign off on such “sensitive investigations,” such as those involving presidential candidates.
“[W]e must investigate and prosecute those matters with sensitivity and care to ensure that the Department’s actions do not unnecessarily advantage or disadvantage any candidate or political party,” Barr wrote in a Feb. 5 memo.
Days after issuing the memo, Barr confirmed that he established an “intake process” for information on Biden collected by Trump’s personal attorney Guiliani, which ex-national security adviser John Bolton memorably termed a “drug deal.” The department has an “obligation to have an open door to anybody who wishes to provide us information that they think is relevant,” the attorney general said last month, though he pledged not to take material from Ukraine at “face value.” At the time, Rep. Jerrold Nadler (D-NY) chairman of the House judiciary committee that has jurisdiction over the surveillance bill, called Barr’s Giuliani channel into question. And last week, federal Judge Reggie Walton, a former FISA Court presiding judge, blasted Barr for “distort[ing] the findings” of Robert Mueller’s special counsel investigation.
Barr endorsed the House surveillance bill on Wednesday, hours before the House passed it on a 278-136 vote.
A congressional staffer told The Daily Beast that fears about the provision were misguided, no matter the concerns about Barr.
“This section does little more than codify current practice,” said the staffer, who was not authorized to talk on the record. “There may be good reason to distrust this particular attorney general–but, of course, any attorney general of either party would be empowered to ask that he or she approve certain sensitive applications before they proceed to the [FISA] court.”
Still, Wyden worried about writing Barr’s memo into law.
“Donald Trump has made it clear that he expects Bill Barr to politicize DOJ [Department of Justice] investigations on his behalf. The solution to the concerns raised by the inspector general is not to codify the politicization of surveillance, especially in lieu of actual reforms,” he said.
The Congressional Progressive Caucus on Wednesday opposed the PATRIOT Act reauthorization bill, though co-chairs Reps. Pramila Jayapal (D-WA) and Mark Pocan (D-WI) called it “an improvement over a clean reauthorization.” Their statement did not make explicit mention of the attorney general provision.
The congressional staffer characterized the bill as containing “important reforms–among them an end to the [NSA’s] Call Detail Records program, protections for geolocation information, retention limits [on government-collected data], and an expanded role for the court-appointed amicus.”
An attorney general’s sign-off on such politically sensitive investigations does not seem to trigger the bill’s requirements, or existing ones, to notify the congressional intelligence committees.
“The bill made modest but incomplete reforms strengthening an independent amicus, and Attorney General Barr was the one that pushed to water those reforms down,” Laperruque said. “It’s clear he doesn’t want an independent watchdog at the FISA Court, he wants the ability to put his thumb on the scale.”
