Michael Swartz / February 28, 2020

The Fight Over FISA

Both parties face internal bickering over what to do with renewing surveillance authority.

When it comes to public awareness about federal policy, the biggest fights often occur at budget time. These high-stakes fiscal poker games make headlines for weeks, particularly when a government shutdown looms.

These battles include periodic reauthorizations of government programs, one of which is the Foreign Intelligence Surveillance Act, better known as FISA. Several provisions of FISA and its younger brethren, the PATRIOT Act, will expire on March 15 unless Congress acts to reauthorize them or grant a second extension. These portions of FISA and the PATRIOT Act were originally slated to expire last December 15, but Congress opted to extend the deadline pending the report of Justice Department Inspector General Michael Horowitz regarding the Obama administration’s abuse of the FISA process to spy on the Trump campaign, ostensibly for collusion with Russia.

With that voluminous report on the Carter Page saga and the FBI’s 17 instances of abuse now part of the public record, the reauthorization of FISA has set off intra-party bickering on both sides of the aisle.

Democrats in the House reportedly had a carefully crafted compromise, the USA FREEDOM Reauthorization Act of 2020, teed up and ready to go; however, a committee meeting necessary for its passage was scrubbed when Rep. Zoe Lofgren of California, a longtime critic of the FISA law, announced she would propose her own amendments to what she termed a “puny reform.” (One key aspect of the proposed bill, however, was the elimination of the call-records data program used to snoop out cellphone data.)

The break on the Republican side, however, is more complex. On one side are civil-libertarian reformers such as Sens. Rand Paul and Mike Lee, and Reps. Jim Jordan and Mark Meadows, who have expressed their desire for reform. “Comey’s FBI misled the FISA Court 17 times,” Jordan tweeted. “We can’t simply reauthorize the system that allowed those lies and omissions to happen.” Most Republicans, though, including Senate Majority Leader Mitch McConnell, are open to a “clean” reauthorization, having heard assurances from Attorney General William Barr that he could make the necessary changes internally. Skeptics of that deal argue that Barr “can’t be trusted” and that it would further remove Congress from needed oversight of the executive branch.

In this case, it appears the head of the executive branch is siding with the reformers, in part because he was perfectly willing at one time to eliminate the FISA apparatus entirely. In discussing the pending reauthorization of FISA with Barr last year, President Donald Trump reportedly said, “I trust you, Bill, but if it was up to me, we’d get rid of the whole thing.”

With so many options out there, the most likely outcome will be to kick the can down the road, perhaps eventually hammering out a “reform” too weak to satisfy those lawmakers interested in safeguarding civil liberties.

Absent significant and needed reforms, however, the potential for abuse of the FISA system will remain temptingly close at hand, and the people’s mistrust of their government will increase accordingly.

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