Unless Congress comes to an agreement by the end of this week, three provisions of the Foreign Intelligence Surveillance Act (FISA) will expire. Some may recall that last December, Inspector General Michael Horowitz identified numerous abuses of the surveillance law that the FBI famously used to monitor a member of Donald Trump’s presidential campaign in 2016. Today, it seems that Congress is about to settle for an underwhelming deal that pays lip service to reform while upholding a broken status quo.
The intelligence community and moderates in Congress would like to make Americans—and the president—believe there is no path forward to reform FISA and uphold Americans’ right to privacy. But that simply isn’t true.
A coalition of members from the House Freedom Caucus and House Progressive Caucus submitted the bipartisan, bicameral Safeguarding Americans’ Private Records Act (SAPRA), which contained serious reforms. However, Judiciary Chairman Jerry Nadler canceled a markup on his own bill rather than entertain these sound changes, in part because Intelligence Chairman Adam Schiff objected to them.
The reforms that Nadler and Schiff rejected include granting public advocates to American citizens who are under investigation by the secretive FISA court and assuring that First Amendment-related activity is properly protected. They also don’t see the urgency in requiring intelligence agencies to obtain a warrant before collecting Americans’ phone and internet data.
Senators Mike Lee and Patrick Leahy also have presented some admirable reforms, which could serve as a starting point towards long overdue accountability. Yet the Senate is just as unlikely to take up these packages as is the House.
Intelligence hawks and neoconservatives call these reforms “radical” or “progressive.” But I submit that they are required by the Constitution. Anything short of this amounts to an abandonment of liberty and tacit approval of the federal government’s extralegal spying regime.
To be sure, there are those of us who would be willing to sunset the Patriot Act in its entirety. Indeed, the reforms in SAPRA already represent a compromise. However, between the surveillance of the Trump campaign and the even more damning revelation that the FBI repeatedly abused a different provision of FISA to collect phone and email records from tens of thousands of American citizens, members of Congress should have an appetite for change.
Attorney General William Barr suggested that Congress should simply reauthorize the programs in question and allow the Justice Department to fix FISA through rulemaking. However, administrative rulemaking doesn’t carry the same assurance as legislation passed through Congress. And protecting Americans’ privacy is too important a job for Congress to delegate.
In lieu of presenting the president with an unpalatable FISA reauthorization, it would be better to let the provisions expire while Congress works out a solution that addresses civil liberty concerns.
The “lone wolf” provision has never once been used and so can be no great loss to the FBI or NSA. The roving wiretap provision—which allows intelligence agencies to maintain surveillance on targets regardless of the use of burner phones—raises unsettling questions about probable cause and the broad interpretation granted to agents conducting national security investigations.
Nevertheless, I offered a compromise amendment that would have authorized roving wiretaps and lone wolf provisions for three years while allowing the Section 215 authority under the Patriot Act, which established the FISA court, to expire. This, too, would enjoy bipartisan and bicameral support, if Congress were allowed to vote on the full range of proposed solutions.
Maintaining our national security should serve as an incentive to Congress to quickly adopt one of the bipartisan proposals that includes the constitutional requirements to maintain citizens’ privacy. It is possible to have both, and Americans should rightly expect it of their government. After all, in our oath of office, every member of Congress solemnly swears to support and defend that Constitution against all enemies, foreign and domestic. It’s time we started taking that seriously.
This opinion piece appeared in The American Conservative.