Congress Finally Looks Under the FISA Hood
At last. Privacy advocates in Congress are finally getting a chance to reform the Foreign Intelligence Surveillance Act (FISA), which grants the government broad spying and eavesdropping powers. Every single Verizon customer having their metadata seized en masse by the feds without a warrant is one thing. But Donald Trump getting inappropriately surveilled? Strap on your boots, Republicans! We’re going to reclaim the Fourth Amendment.
Still, however cynical the rationale, the appetite on Capitol Hill for beefing up privacy protections does seem to be real. It began two months ago, when the House of Representatives passed a bill that would have reauthorized surveillance authorities that were due to lapse. These included powers under Section 215 of the Patriot Act, which grants the government broad latitude to collect records and data, as well as roving wiretaps and the so-called lone wolf provision.
The House legislation made only cursory changes to the surveillance regime. It would have ended one particularly pointless NSA database, required FISA judges to more often seek outside critiques of the government’s positions, and—but of course!—mandate that the attorney general sign off if a federal candidate or elected official was to be surveilled. Still, it was telling that the reforms were included at all, and the House Judiciary Committee quickly rammed the bill through without allowing markup. A source on Capitol Hill tells me this was because they were worried that more libertarian members, like Congresswoman Zoe Lofgren and Congressman Warren Davidson, had the votes for even deeper surgery on FISA.
Then it was on to the Senate, where Mitch McConnell said his preference was to pass a clean version of the House bill. Privacy advocates said no and began sharpening their swords. Votes were ultimately allowed on three amendments, which we might classify as cool, warm, and hot.
The cool amendment, introduced by Senators Mike Lee and Patrick Leahy, would expand the FISA court’s use of amicus curiae into a more adversarial role, allowing them to stand in, in a sense, for defendants, who don’t appear at the court’s proceedings. This was adopted overwhelmingly (and surprisingly) by the Senate in a 77 to 19 vote. The warm amendment, introduced by Senators Ron Wyden and Steve Daines, would have prevented the feds from using Section 215 to search Americans’ internet browsing histories without a warrant. This failed last night by one vote, 59 to 37. Finally, the hot amendment, sponsored by Senator Rand Paul, would gut the FISA process altogether, requiring that most surveillance requests against American citizens be handled in the regular court system and first attain warrants. We should be so lucky. The Paul amendment is expected to be voted down today.
Still, the adoption of Leahy-Lee is progress. Importantly, it will kick the legislation back to the House, which will have to vote on it again. The questions now are, first, whether Nancy Pelosi will allow any further privacy reforms to be inserted into the bill, and second, if she doesn’t, whether the House might vote the bill down. The answers to both, I think, are contingent on the progressives in her caucus. How much pressure will they apply? How willing are they to fight for the Fourth Amendment?
If that profile in courage Bernie Sanders is any indication, the answer is: not very willing at all. Sanders, the progressive super-warrior, skipped the vote on Leahy-Lee last night and it still isn’t clear why. Had he been there, the amendment would have cleared the 60-vote threshold and browsing histories would be off-limits to thirsty intelligence officials. Alas. So Tom Cotton and Marco Rubio win that round. Still, almost 19 years after the Patriot Act’s passage, almost five years after the last round of serious reforms, Congress finally seems ready to look under the hood of America’s surveillance regime.