Michael Swartz / January 12, 2018

Congress Works on Contentious Surveillance Bill

The Long War continues and good tools are required, but constitutional rights must be protected.

For the second time in as many weeks, civil libertarians are waging a battle with the federal government. But this time the focus is on Congress and the re-authorization of a significant portion of our national security apparatus — specifically, the Section 702 program, which provides for the targeting of foreigners but also has swept up the communication of Americans, based on its position within the overall Foreign Intelligence Surveillance Amendments Act.

The bill keeping FISA alive for another six years passed the House on a 256-164 vote Thursday, then survived the first Senate challenge with a 69-26 vote to limit debate later that day. Time is of the essence, as the section’s authorization expires a week from today.

Things got a little confusing for a time as President Donald Trump took to Twitter twice in the space of a few hours, seemingly taking a position against re-authorization at first before clarifying his remarks and expressing his support. The initial tweet may have come as a result of watching Judge Andrew Napolitano stand in opposition to the bill on Fox News. He said the provision “is the muffled sound of the Trump administration and Republican congressional leaders plotting the enactment of an addition to FISA that would permit the use of evidence of crimes in federal court even when it is discovered during mass surveillance authorized by general warrants.”

“If enacted,” Napolitano continued, “this radical, unconstitutional hole in the Fourth Amendment would bring the country full circle back to the government’s use of general warrants to harass and prosecute — general warrants so odious to our forebears that they took up arms against the king’s soldiers to be rid of them.” He added that President Trump himself had been the victim of “unconstitutional FISC-authorized domestic surveillance.”

Indeed, that was likely why Trump appeared at first to oppose the bill.

Reacting to that first tweet, House Minority Leader Nancy Pelosi reportedly urged House Speaker Paul Ryan to pull the Section 702 bill — but voted for it anyway. And once the president was set straight by advisers and legislators, he sent the second tweet calling for passage.

In another reaction to the bill itself, a countermeasure called the USA Rights Amendment was defeated in the House on a 233-183 vote. This amendment was intended to force the federal government to secure a warrant before using information collected on Americans, as critics claim the current system of collecting massive amounts of data without regard to recipient or sender can be used as a backdoor method of gathering evidence without securing a search warrant first — what Napolitano called a “general warrant.” Senate civil libertarians Rand Paul and Mike Lee, both Republicans, have announced their opposition to the Section 702 re-authorization as it currently stands, meaning at least one Senate Democrat will have to get on board the Trump Train just to have Vice President Mike Pence cast a tie-breaking vote.

Because various provisions dealing with national security expire from time to time, we’ve had this controversy come up regularly since the PATRIOT Act was passed in the wake of 9/11. Three years ago, there was a stir over metadata collection as Congress rushed to reauthorize law.

If the American people have become uneasy about the PATRIOT Act, it may have something to do with Barack Obama’s administration having regularly violated government protocols they themselves put in place. Whether one blames Obama holdovers from the Deep State or Russian influence embedded in our intelligence apparatus after Trump’s election, the short answer is that Liberty can too easily take a backseat to security.

Cato Institute senior fellow Julian Sanchez argues, “Yet when it came to an actual vote Thursday morning, Republican leadership — and ultimately even Trump himself — came down in opposition to the most elementary check imaginable on NSA and FBI’s sweeping wiretap authorities: A requirement that a judicial warrant be obtained before repurposing a foreign intelligence database to scrutinize the private communications of Americans. Instead, most fell back on a more familiar Republican argument: Broad wiretap powers, unhampered by too much judicial oversight, are necessary to keep us safe, and Americans must trust the patriotic employees of the intelligence agencies to use those powers responsibly.”

The balance here is as tough as anything. After all, our nation is still fighting battles in the Long War against radical Islamic terrorism, and we need the best tools for stopping terrorists, saving American lives and preserving national security. And yet as we’ve seen over the previous eight years, power corrupts and is abused. Constitutional rights must be protected. Navigating some smart reforms for antiterrorism tools is the least we can ask of our elected representatives.

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