Washington, D.C. – In case you missed it, Congressman Warren Davidson’s op-ed in today’s Cincinnati Enquirer focuses on the FISA program and talk concerning the recently released “memo”. Rep. Davidson has been involved in the FISA issue and will continue to play a role as Congress plans to readdress safeguards surrounding the program in the future. His piece further explains the program and its impact on Ohioans.

The full op-ed is below and can be accessed here.

Will FISA write the epitaph of the Fourth Amendment?

Cincinnati Enquirer

Congressman Warren Davidson (OH-08)

Although Section 702 of the Foreign Intelligence Surveillance Act (FISA) was just reauthorized for six years, I joined a broad coalition of Republicans and Democrats who share Constitutional concerns about the current program and the re-authorization bill. While each Member opposed may have individual differences about the ideal solution, we coalesced around one alternative, the USA Rights Amendment sponsored by Justin Amash, which would have restored the warrant requirement for searches related to American citizens. Unfortunately, our efforts failed 183 to 233. Despite substantial bipartisan support for the USA Rights Amendment, House leadership refused to consider other amendments, excluding all five of the amendments I offered. Each was more stringent than the reauthorization bill that passed, but less stringent than the USA Rights Amendment that failed.

Make no mistake, the overall program serves a vital national security objective. I understand the essential role intelligence gathering plays in defending the U.S. from foreign threats, but there needs to be strong safeguards in place to protect citizens’ privacy rights.  Our point was not to end the program, but rather to ensure that in the effort to conduct foreign intelligence surveillance that we continue to respect the Constitutional rights of all Americans. The Constitution of the United States does not apply to non-citizens, but citizenship matters and Americans are supposed to be protected by the Constitution of the United States.

In 1978, Congress passed FISA to establish procedures that protect the privacy rights of U.S. persons when they are being monitored for the purpose of collecting foreign intelligence. Under these procedures, law enforcement officials must get a court order from the Foreign Intelligence Surveillance Court (FISC) to search an American’s communications, and they must comply with certain procedures that protect the anonymity of U.S. persons.

Following 9/11, the federal government wanted to gather intelligence on terrorist networks by searching through and capturing enormous amounts of electronic communications such as emails, text messages, phone calls, and more. Section 702 of the FISA Amendments Act created procedures for targeting non-citizens located outside of the United States.  In order to collect the information, these FISA amendments created a different set of laws that gave law enforcement officers permission to collect data on Americans without having to go through the warrant system. This means that family members innocently conversing by email about a news story could have their data collected, stored, searched, and used against them – all without a warrant.

Government agencies like the NSA, CIA, and FBI can search through this data using search terms relating to American citizens. The FBI can use FISA derived evidence to start criminal investigations and use as evidence in court, even if the crime is unrelated to national security. Backdoor searches have allowed law enforcement officers to circumvent privacy protection guarantees to American citizens by the Fourth Amendment.

Rather than hand another blank check for the FISA program, Congress should have at least implemented reporting requirements to make sure agencies are following and enforcing statutory requirements and administrative guidelines set by the Foreign Intelligence Surveillance Court (FISC).

Moments before the vote reauthorizing Section 702, President Trump shared his concerns over twitter about the Steele dossier placing responsibility on FISA. The NSA has a history of gathering huge amounts of private communications, including from citizens like Ohioans Dennis Kucinich (D-OH) and Jim Traficant (D-OH). Moreover, according to Department of Justice’s own FISA reports, obtaining a warrant has an almost nonexistent denial rate. Of the nearly forty thousand warrants issued only 51 have been denied – a .12 percent denial rate. Now, it seems possible that FISA’s warrant process was abused to target another political figure, then candidate and President-elect, now President Donald Trump.

Americans should be concerned that the federal government has the ability to abuse its capacity to gather foreign intelligence by needlessly spying on its own citizens. Unless we the people support and defend our Constitution, what’s next? Without serious reforms to FISA, the Fourth Amendment will exist as nothing more than a very distant memory. As Ronald Reagan said, “Freedom is never more than one generation away from extinction.” In light of all that has transpired since the reauthorization of FISA, I feel that Congress has a duty to revisit this issue to both sustain an essential intelligence program and to guarantee Constitutional protections for every American.

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Note: This op-ed first appeared in War on the Rocks.

Anyone who has served in the U.S. armed forces is familiar with completing an Operations Order (OPORD). Spelling out the situation, mission, execution, sustainment, and command and control enables our Army to “fight and win our Nation’s wars.” For our troops in harm’s way in Syria right now, the mission has not been spelled out and Congress, by ignoring its responsibilities to authorize and exercise oversight over the use of military force, is responsible. History has shown us that when Congress neglects its duty, our troops are at an avoidable strategic disadvantage.

For a prime example of this dynamic, we need look no further than the Vietnam War. In the jungles of Southeast Asia, the United States gradually built up its activities with no clear direction from Congress. The result of this legislative negligence was a bloody, deadly, and tragic waste of resources. One does not have to look hard to see the parallel in Syria. Over the years, a steady trickle of troops were committed as the United States sought to train “moderate rebels.” Where does this path lead?

In the wake of the failures of Vietnam, Congress attempted to reassert its authority over war-making with the 1973 War Powers Resolution. Seeking to prevent further failures in Syria, Congress likewise needs to reclaim its war powers through a new Authorization for Use of Military Force (AUMF). The time for this is now.

The 2001 AUMF, with its vaguely worded authorization targeting the 9/11 attackers and their associated forces, forms the legal justification for many of our current military operations in the Middle East, including those directed against the Islamic State of Iraq and the Levant (ISIL). The mismatch between the 2001 AUMF approved by Congress and the reality of current operations on the ground is not just a theoretical constitutional issue. Congressional negligence and neglect on this front is a recipe for failure.

Congress must take ownership of the fact that the United States is currently engaged in a different war than the one it authorized 16 years ago. The Global War on Terror was focused on ousting al-Qaeda and Taliban fighters from Afghanistan and shutting down affiliated jihadist cells in Southeast Asia and North Africa. Today, ISIL and al-Qaeda compete around the globe for affiliates, whether by attempting to establish cells in more stable nations such as India or taking advantage of the increasing number of failed states such as Yemen and Libya. While ISIL shares the same Salafi-jihad ideology as al-Qaeda, it is a distinct organization with different capabilities, leadership, structure, and strategies.

There are clear differences between defeating ISIL in 2017 and defeating al-Qaeda in Afghanistan in 2001. These different dynamics were most recently on display in the U.S. attack on the Shayrat Airbase in Syria. Are American actions in Syria focused on defeating ISIL or regime change in Syria? Was Trump’s cruise missile strike retaliation for crimes against humanity or was it aimed at reestablishing deterrence against chemical weapons use? Listening to various senior administration officials in the days following the attack, all of these were offered as explanations. It was clear that no objectives had been elucidated and agreed upon even within the administration.

The White House seemed to settle on the positon that the purpose of these strikes was to send a signal to our adversaries that the use of chemical weapons will not be tolerated. This may be sensible, but unfortunately it has nothing to do with the aims laid out in the 2001 AUMF. Under what authority were these strikes carried out?

The landscape of threats and challenges in the Middle East and elsewhere indicates we are fighting in a very different battlespace than the one envisioned in 2001. We need a foreign policy that reflects that reality. And should that foreign policy require the use of force, Congress must take the lead and reclaim its constitutional prerogatives by debating and passing a new AUMF. Critics might argue that this will only hamstring our military from actually winning on the battlefield, but this is not the case. Congress can and should craft an AUMF that is narrowly tailored and spells out the mission clearly, but also gives our leaders room to adapt and ensures that our commanders have reasonable autonomy with respect to rules of engagement.

America’s men and women in uniform deserve decisive leadership from Congress. When the United States commits these lives and resources to an effort, we need to ensure that it is not in vain and make clear that America intends to win. We cannot determine if we have won if we do not define what winning looks like. Now is the time to define clearly what an “America First” foreign policy looks like. It is time to reverse Obama-era failures to take our enemies seriously. But the United States should also reject the neoconservative approach that envisions American military power solving every problem in the world to affect regime change and take on doomed nation-building, projects.

A new AUMF would place war power authority squarely where the founders intended it: in the hands of Congress. The founders rightly understood the serious nature of waging war and the lives and resources our government asks to be put on the line in the process. War needs buy-in from the people and should be openly debated by Congress where the people are most directly represented. Members of Congress have sworn to uphold the Constitution and need to begin acknowledging the weightiness of that oath with respect to authorizing combat, declaring our wars, and providing accountability for victory.

It could not be more important for Congress to perform this most basic duty of reclaiming its constitutional war powers. Executive branch overreach, no matter who is president, should be of concern on both sides of the aisle. The status quo of allowing for uninterrupted war without following the constitutional framework has paved the way for the imperial presidency, making Congress complicit in taking away the voice of the American people. This dereliction of duty threatens to tear apart the fabric of our republic, to the dishonor of all who have fought to defend and preserve our freedoms. Now is the time for deeds, not words. Congress must act and support our president, our troops, and the American people by providing an updated AUMF specific to the fight against ISIL.

Congressman Warren Davidson (R-OH) was first elected to the U.S. House of Representatives in a June 2016 special election. A graduate of the U.S. Military Academy, he had the honor of serving in the 75th Ranger Regiment, The Old Guard, and the 101st Airborne Division.   

Note: This op-ed first appeared in The Daily Signal.

We all knew President Barack Obama’s lame-duck presidency would be bad, but for the millions of Americans who work at family farms and businesses, it’s about to get a lot worse.

As Heritage Foundation tax expert Curtis Dubay wrote at The Daily Signal, Obama is trying to sneak in a tax hike in his twilight days. His Treasury Department unveiled midnight regulations that effectively would increase the death tax to 30 or 40 percent.

If Obama channeled his desire and creativity in raising taxes into cutting spending, we probably would have a budget surplus by now.

In this case, the president’s creativity involves tinkering with well-established “valuation discounts” that families use to calculate their death tax liability.

These valuation discounts are one reason family businesses have been able to accurately calculate the burden of the estate tax—popularly known as the death tax—so the business or farm itself can be passed from generation to generation.

If these valuation discounts didn’t exist, then every time an owner died, a business essentially would have to overvalue itself, and thus be subject to a higher effective tax bill than the law intends. Farms especially are affected by this issue, and the estate tax generally, because it is a lot harder to sell off 40 percent of your farm than 40 percent of stocks or other assets.

If that’s not too much of a burden, imagine being a partial owner of one of these farms.

If you own one-tenth of your grandfather’s farm, you don’t have enough say in the future of the business to decide whether you want to sell off the farm or pay the 40 percent tax to keep it.

Such partial owners are faced with a choice: Either sell off your share for much less than it is worth or pay the government 40 percent of its value. For family-owned businesses, built with the blood, sweat, and tears of ancestors, this is an immoral choice for the government to force on people.

This issue affects workers, too. In cutting costs and selling assets to pay the IRS, many family businesses facing a tragic death and an ensuing death tax are forced to downsize.

For the economy as a whole, this means that millions of people who work for small businesses could lose their jobs, just because the Internal Revenue Service wants an added piece of the action if a business owner dies.

What’s good for the economy is when businesses grow and innovate. They shouldn’t have to plan to liquidate their assets to pay the IRS bill whenever an owner dies.

Democrats are floating a plan for a 65 percent death tax in order to “level the playing field.” This is no more than socialist planning by elites to confiscate property from hardworking Americans to pay for failed government programs and spending that won’t improve standards of living.

For the mega-rich who have enough money to structure their assets, this works just fine. For hardworking Americans who put everything they own into creating jobs and building their business, this is not an option.

Regardless of the bad economics behind the death tax, the Obama administration is going about it in the wrong way.

Deciding tax policy is a power enumerated solely for Congress. This is something that should be decided in the open with a robust public debate. The Founding Fathers believed this too, which is why they gave Congress, and the House in particular (the “people’s House”), the power to initiate tax laws.

If Congress doesn’t do anything, this will mean an even greater increase of out-of-control executive authority.

That is why I introduced legislation, the Protect Family Farms and Businesses Act, to halt the Obama administration’s backdoor tax increase. It would prohibit the administration’s new rule, or any like it, from going into effect.

The bill already has more than 20 co-sponsors and the support of more than 100 organizations.

Too much is on the line for too many for Congress to stand idle. The jobs of millions of Americans are at stake.