Trump’s FISA past under scrutiny amidst FBI surveillance power debate

Former President Donald Trump urged Republicans on Wednesday to vote against reauthorizing Section 702 of the Foreign Intelligence Surveillance Act, citing how the government misused FISA to surveil one of his 2016 campaign aides.

However, Trump’s opposition to the bill did not entirely account for the former president’s history with Section 702 or the provisions of the current reauthorization bill that the House is fighting over.

His call to reject the powerful surveillance program came in the form of a post on Truth Social hours before the House was set to cast a procedural vote to advance the reauthorization bill.

“KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!” Trump wrote Wednesday morning.

In a jarring blow to GOP leadership, the measure failed after 19 Republicans defected from the party and voted against it. Many news reports and commentators were quick to draw a correlation from Trump’s morning advocacy to the failed afternoon bill.

However, while many of the 19 Republicans, such as Rep. Matt Gaetz (R-FL) and Lauren Boebert (R-CO), are fervent Trump supporters, these members had already signaled or outright declared their opposition to the current legislation. There is little indication that Trump influenced them to change their position overnight.

Still, Trump, the presumptive Republican presidential nominee, has enormous sway over the party and a platform to reach millions of supporters. The timing of his statement suggested that the Carter Page surveillance abuse, which a Department of Justice inspector general made public in 2019, was related to the current Section 702 fight, when, in reality, those improprieties occurred through a separate provision of FISA that is unaffected by Section 702.

FISA is a 1970s-era set of laws that govern how the intelligence community conducts surveillance of people’s electronic communications for national security purposes.

Section 702 of FISA allows for warrantless surveillance of foreigners, but controversy has arisen over the fact that people in the U.S. who communicate with those overseas can have their communications swept up and subsequently searched for in a database of collected communications. The FBI was found in recent years to have inappropriately queried the database hundreds of thousands of times for U.S. citizens’ private information. The bureau is adamant that it has since implemented internal reforms that have drastically reduced these violations.

The outrage over the FBI’s handling of Page, Trump’s former foreign policy adviser during his 2016 campaign, has been, however, one of the most high-profile recent examples of government surveillance abuse.

DOJ IG Michael Horowitz found in 2019 that through Title I of FISA — not Section 702 — the FBI’s top officials used flimsy, error-filled applications to obtain court orders to surveil Page as part of the government’s investigation into the Trump campaign’s alleged collusion with Russia.

The FBI “failed to meet the basic obligation to ensure that the Carter Page FISA applications were scrupulously accurate,” Horowitz said at the time.

At the beginning of 2018, well before Horowitz released his findings, Republicans were already raising concerns over what they suspected was an abuse of FISA tools to spy on Page.

Despite Trump’s rage about the FBI’s handling of Page, Trump himself was the last president to sign a comprehensive bill to reauthorize Section 702 for six years in January 2018. Its next expiration is quickly approaching on April 19.

“Just signed 702 Bill to reauthorize foreign intelligence collection. This is NOT the same FISA law that was so wrongly abused during the election,” Trump wrote on X at the time.

Trump’s condemnation of FISA on Wednesday was not new. However, because he made it at a pivotal moment when Congress was struggling to pass a bill to address Section 702’s looming deadline, it appeared tied to that legislation, and some lawmakers perceived it that way.

The Trump campaign did not respond to a request for comment on the former president’s remarks.

The legislation that failed in the House on Wednesday is known as the Reforming Intelligence and Securing America Act. It is largely a product of the Intelligence Committee and has won Speaker Mike Johnson’s (R-LA) support. However, on a bipartisan basis, the Judiciary Committee has been pushing for its own competing version of the bill that would require the FBI to obtain warrants before it could search U.S. citizens’ data.

The warrant provision, as well as a separate provision to address data brokers selling U.S. citizens’ private information to the government, are driving the deep divisions plaguing the House. Johnson, a former Judiciary member, has drawn ire from his colleagues who say the speaker is, in the words of Rep. Warren Davidson (R-OH), acting like a “different person” by suddenly supporting the new bill.

Rep. Darren LaHood (R-IL), a member of the Intelligence Committee, has, by contrast, championed the RISA Act as a way to aggressively reform Section 702. LaHood, a former federal prosecutor, was himself a target of inappropriate spying through FISA and has conveyed confidence that restrictions the new bill places on the FBI will prevent future abuses.

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Moreover, LaHood noted in a recent interview with the Washington Examiner that one of the dozens of reforms goes beyond Section 702 to install a third-party lawyer who would review applications to the FISA court. According to LaHood, this could prevent future incidents like the FBI’s wrongdoings with Page.

The RISA Act brings in “an independent attorney to the FISC process, so that if the Carter Page application would be submitted now, there would be an attorney, independent, almost like a public defender, overseeing that process. Never had that before,” LaHood said.