After Monday’s release of the Justice Department inspector general Foreign Intelligence Service Act report, Senate Republicans want to see more scrutiny on the FISA application process ahead of the reauthorization of three FISA provisions.
The three FISA measures expected to sunset on March 15, as a result of Congress’ passage of a short term government spending bill last month, are the business records, roving wire taps, and lone wolf provisions.
In the business records provision, Section 215 of the Patriot Act of 2001 authorizes the Foreign Intelligence Surveillance Court to grant an order for third parties to bring forth “tangible things (including books, records, papers, document, and other items)” when the FBI has produced specific evidence.
Section 206’s roving wiretap provision is related to whether wiretaps of particular phone numbers that are not specified in a warrant, while still zeroing in on a certain target, are constitutional.
For example, if a target of a surveillance tries to evade the wiretap by throwing the phone out and purchasing a new one, a new warrant would be required. However, a roving wiretap allows for the investigators to surveil the target instead of a particular device, so applying for another warrant is not necessary.
The lone wolf provision amended what defined a “foreign power.” By doing so, it allowed the FISA courts to issue surveillance and physical search warrants of persons without having to find a tie between the “lone wolf” and a foreign government or terrorist organization.
However, revelations in Inspector General Michael Horowitz’s report about the application of FISA warrants on Trump campaign allies have given some Republican members pause.
Senate Judiciary Chairman Lindsey Graham told the Washington Examiner that it may be necessary to move at a slower pace as far as the reauthorization of the FISA provisions is concerned.
“I think what we need to do is slow down and figure out what we need to do,” Graham said of the upcoming three FISA provisions. “All the things that need to be renewed, I’m OK with. These are tools for our intelligence community. What I’m not OK with is the process to get a warrant.”
Wisconsin Republican Sen. Ron Johnson agreed, saying, “I think it’ll be looked at as far greater scrutiny now in the past. We’ve taken a look at this and said, ‘Well, show me where there’s an abuse. Show me how Americans have been harmed by this process.’ Now we see the whole nation has been harmed by this process.”
Louisiana Republican Sen. John Kennedy, a member of the Judiciary Committee, added that the FISA procedures should be looked at more closely and described his reaction to Horowitz’s report, saying, “The way that our FBI agents handled the FISA application, it was sort of a combination of a train wreck, a dumpster fire, and a custard event.”
However, Democrats, who see the FBI investigation into the Trump campaign as justified, are not actively pushing for changes in the FISA provisions.
“If there are ways to make these laws more effectively, I’m always open, but the bottom line was, I think what the inspector general said was the geneses of this investigation were totally appropriate,” Virginia Democratic Sen. Mark Warner, ranking member of the Intelligence Committee, said. “As a matter fact, if there had not been an investigation, I think there would have been malfeasance.”
