A looming fight over the FBI’s surveillance powers was always going to get rancorous. Special Counsel John Durham’s report on the Trump-Russia investigation made matters worse.
The long-awaited report from Durham wasn’t focused on the expiring power — known as Section 702, an authority that is meant to capture the communications of foreign targets but can also sweep up U.S. citizens. It instead accused the FBI of a double standard in its handling of an investigation probing potential ties between Russia and Donald Trump’s 2016 presidential campaign.
But the findings are already being used as the latest catalyst for House GOP skeptics who want to overhaul Section 702 as well as enact broader reforms to the Foreign Intelligence Surveillance Act and a related powerful court that operates mostly in secret.
“It just further confirms that we’ve got to make major, major changes and that it cannot be reauthorized as is. … It can’t just be same old, same old,” Rep. Jim Jordan (R-Ohio) said in a brief interview about the impact of Durham’s report on the surveillance debate.
As the chair of the Judiciary Committee, and conservative sweetheart within the conference, Jordan could have significant influence over any legislation renewing the program.
To be sure, many within the House GOP conference already regard the FBI with deep skepticism, concerned it has unfairly targeted conservatives like the former president. That’s been top of mind as Congress approaches an end-of-year deadline on whether to renew the program.
And even some of the intelligence community’s biggest allies in both parties on Capitol Hill have questioned the bureau’s ability to stay within the guardrails of Section 702. There’s also bipartisan skepticism and opposition on the Judiciary panel specifically about continuing the authority without significant changes.
Asked if he thought Durham’s report will play into their upcoming surveillance debate, Rep. Chip Roy (R-Texas), replied: “Absolutely. Yes.”
“I can assure you, 702, that is not going to get rubber stamped. That either needs to get reversed or we got to sit down and come up with some very serious protections and reforms,” Roy, a member of the Judiciary Committee, said in a brief interview.
Rep. Kelly Armstrong (R-N.D.), a member of Jordan’s subpanel investigating Republican claims of politicization within the federal government, said he would vote against reauthorizing Section 702 as it currently exists. He also called the Durham report an “absolute indictment” of the broader surveillance law.
Much of Durham’s report aligns with damning findings in recent years from Justice Department Inspector General Michael Horowitz, who released a series of reports on the surveillance applications for then-Trump adviser Carter Page and a broader sweep of FISA warrant applications.
In response to Horowitz’s findings, the FBI enacted changes to how the bureau handles its submissions to the court who oversees the warrants, including changes in procedures, auditing and training. The FBI, in a statement responding to Durham’s report, argued that if their changes had been in place in 2016 and 2017 “the missteps identified in the report could have been prevented.”
“This report reinforces the importance of ensuring the FBI continues to do its work with the rigor, objectivity, and professionalism the American people deserve and rightly expect,” the FBI said in a statement.
The FBI and the broader intelligence community are also ramping up their efforts to pitch Congress on reauthorizing the program. The bureau and the Justice Department have touted the creation of an internal audit office and new internal guidelines like requiring additional layers of review before certain searches can take place. Officials argue the program is essential to national security, and have advocated that Congress re-up it largely as is.
And Durham, notably, doesn’t mention 702 directly in his report. He adds that he’s not recommending anything “that would curtail the scope of reach of FISA or the FBI’s investigative activities … in a time of aggressive and hostile terrorist groups and foreign powers.”
Congress has until the end of the year to strike a deal on how to extend Section 702, but supporters of extending the program are already making contingency plans, such as floating a short-term patch. Some surveillance hawks on Jordan’s panel are discussing letting the authority lapse altogether.
Meanwhile, a group convened by House Intelligence Chair Mike Turner (R-Ohio) and Rep. Jim Himes (D-Conn.), the committee’s top Democrat, are looking at further changes to the secretive surveillance court.
That includes, according to lawmakers in the group, new penalties for individuals who lie to the surveillance court, transcripts for court proceedings and keeping the same judge for both the initial warrant application and follow-up applications.
“Such actions should never have occurred,” Turner said, referring to the Durham report. “It is essential that Congress codifies clear guardrails that prevent future FBI abuses and restores the public’s trust in our law enforcement institutions.”
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