Congress has until March 15 to reauthorize, or not, four provisions of the Foreign Intelligence Surveillance Act. That was supposed to have happened back in December, but it kicked the can down the road by putting a temporary reauthorization in one of the continuing resolutions passed in the fall to keep the government from shutting down. The intervening weeks have done little to resolve the major issues many members of Congress have with FISA. Let's start with California Democrat Rep. Zoe Lofgren of the House Judiciary Committee. Frustrated that revisions to the bill were hashed out outside of committee between her chairman, Jerry Nadler, and House Intelligence Committee Chairman Adam Schiff without a committee process of revisions and amendments, she insisted that amendments be considered before reauthorization was considered in a Judiciary Committee hearing Wednesday. That hearing ended up being postponed.
Lofgren wants common-sense civil liberties protections, including a "friend of the court" outside expert to review and critique the government's arguments when it applies to the FISA court for permission to wiretap an American. She would also ban a business records collection program that allows the government to obtain cellphone location and the web-searching and browsing history of targets. "I don't think I am an unreasonable person, but what was advanced, to me, was so pitiful that it is not even worth pursuing," Lofgren told The New York Times Wednesday. "We have the opportunity to reform the system. We should take that opportunity." Nadler agreed to work with her and Schiff on her amendments.
There's another problem in getting this done, though, and that is of course Donald Trump, who persists in the belief that his campaign was unfairly targeted by the FBI using tools under FISA, despite conclusive reports to the contrary. While the Times reported that "the Trump administration's official position is that Congress should extend the expiring laws without any changes—the kind of 'clean extension' that Attorney General William P. Barr urged [Republican] senators to back at a closed-door lunch on Tuesday," Trump was saying otherwise.
On Wednesday, he told his buddy Sen. Rand Paul that he is opposed to a "clean" extension. "FISA warrants should not be issued against Americans," Paul told Politico Thursday. "Americans shouldn't be spied on by a secret court. I think [Trump] agrees completely with that and that's the amendment that I'm going to insist on. I'm not letting anything go easy without a vote on my amendment." Once again, Trump and Paul are making life difficult for Mitch McConnell on this one—he wants that clean extension Barr promised. McConnell and Trump met Thursday, though it's unclear now if their discussion included the FISA problem or was limited to the coronavirus crisis.
Lofgren's amendments are smart and could possibly pull in bipartisan votes in the House and appeal to the libertarian wing of Senate Republicans, including Paul. She's right when she says, "This goes back decades" to the 2001 Patriot Act. "Many times we've had the chairmen, either Republican or Democratic chairmen, saying, 'we have to hold off, otherwise the [House Intelligence Committee] people blow this up.' And as a consequence of that, 20 years in, we haven't reformed it. I'm done with that."