President Trump’s decision to threaten to veto the House FISA re-authorization bill is a political gift for progressives. The legislation passed by the Senate is overly broad, does not do enough to protect privacy rights, and allows the government to collect and store web browsing and Internet search histories without a warrant, and without disclosing the scope of the data collection. Normally, Republicans will support national security legislation in lock-step, but because President Trump has accused the FBI of substantial abuses, he has issued a very blunt directive to oppose the bill, and has successfully whipped House Republicans to vote against it. The Republicans have joined the House Progressive Caucus in threatening a no vote.
Nancy Pelosi doesn’t have the votes to pass the legislation as is, which means we now have the leverage to make meaningful changes to FISA. Ron Wyden’s statement on the Senate version provides some good goal posts:
The FISA bill posted by the House Rules Committee includes provisions sought by reformers, but falls far short of the meaningful protections for Americans’ rights that members from both parties have demanded. It codifies prohibitions on two collection activities that the government had already suspended: the massive and ineffective call detail record program and the unconstitutional warrantless collection of GPS and cell-site location information. Both of these prohibitions were included in the bipartisan, bicameral Safeguarding Americans’ Private Records Act. Unfortunately, the House bill does not fundamentally reform Section 215 of FISA, leaving, for example, the vague ‘relevance’ standard that has been abused in the past through secret interpretations. Nor does the bill prohibit the government from digitally tracking Americans through their web browsing and internet search history without a warrant. The bill’s limitations on indefinite retention of Americans’ records includes big loopholes, and the bill fails to ensure that the American public will ever know how much of their private records have been collected.
“Real reform of the FISA process in response to the problems identified by the Inspector General is dependent on a simple concept: independent oversight. There was bipartisan support to allow the independent amicus curiae of the FISA Court to have access to all FISA applications and orders and to have the opportunity to raise concerns with the Court. This reform was not included in the bill. Nor did the bill expand the mandate of the Privacy and Civil Liberties Oversight Board to include all surveillance that affects the privacy of Americans.
“Finally, the bill fails to clarify that the government cannot collect information like communications records and geo-location information outside the FISA process and beyond any judicial or congressional oversight. When Congress passes surveillance laws, the public has a right to know that the government does not consider them optional.
Unfortunately, Nancy Pelosi and the House Democratic Leadership tried to whip up Democratic votes to pass the bill as is. In particular, the House has been led by Adam Schiff, a long-time supporter of empowering the intelligence committees, even at the expense of individual liberties. Now is the opportunity to legislate changes to FISA that truly protect our Fourth Amendment rights. These are typically rights that Americans can use to defend themselves in court, but due to the sensitive nature of the intelligence being collected by the FBI, most Americans cannot reasonably protect their privacy due to FISA violations. Only Congress has the capacity to protect our privacy and ensure a system of intelligence collection free from abuse.
The recent disclosure of FISA court abuses during the Carter Page investigation were highlighted by the ACLU as particularly problematic examples of how the FISA process has failed to protect civil liberties:
The IG report found that there were a series of inaccuracies and omissions in the initial Carter Page surveillance application and subsequent renewal applications—yet these problems went largely undiscovered and unchallenged as part of the secret, one-sided FISA process. Among other things, the initial application relied on representations by former British intelligence officer Christopher Steele, but mischaracterized his background and excluded facts relevant to his reliability. In addition, the initial application failed to accurately reflect Page’s prior relationship with another government agency—despite the fact that “Page’s status with the other agency overlapped in time with some of the interactions between Page and known Russian intelligence officers that were relied upon in the FISA applications.” These and several other significant errors were repeated in three subsequent renewal applications. These problems are particularly striking given that the Page surveillance applications received more scrutiny within DOJ than typical FISA surveillance applications. As the IG observed, “That so many basic and fundamental errors were made by three separate, hand-picked teams on one of the most sensitive FBI investigations that was briefed to the highest levels within the FBI, and that FBI officials expected would eventually be subjected to close scrutiny, raised significant questions” about the FISA application process.
As the IG report shows, the secretive, one-sided nature of FISA proceedings before the FISC allowed the errors within the Page application to accumulate and continue largely unchallenged. In most cases, including Page’s, there is no entity within the FISA court charged with challenging government claims, or raising potential civil liberties concerns. Targets of FISA surveillance are almost never notified, even after surveillance has been concluded, insulating the FBI from scrutiny in cases where surveillance is unwarranted or otherwise raises constitutional concerns. And, the vast majority of surveillance applications and orders are never declassified, which dramatically limits even after-the-fact scrutiny. For example, press reports in 2015 revealed that five prominent Muslim Americans, including individuals who served in the Bush administration, were targeted by FISA surveillance. To date, the applications and orders related to this surveillance have not been declassified, nor has the public received an explanation as to why these individuals were targeted.
Although President Trump can claim he was the victim of these abuses now, if we don’t fix these issues, the next target of unlawful or abusive surveillance will be a Democratic candidate for president. In fact, we know so little about the activities of the intelligence agencies and the FISC that a Democratic candidate may have already been the target of unlawful surveillance. Without real oversight and new legislative protections, it’s only a matter of time. So let’s take this moment of surreal bipartisanship, and pass some actual progressive reforms of FISA. There’s no excuse for the Democratic Leadership.