In Washington’s theatrical production of “Shutdown: 2018” – directed by Sen. Chuck Schumer, produced by the Mainstream Media, and featuring all of Congress’ top stars – we saw Republicans and Democrats hopelessly mired in an intractable partisan gridlock. As the hours trickled by in the 24-hour news cycle, the audience waited with bated breath for our heroes to reach a last-minute, temporary compromise that saved the day, and our country. It was a story written for the headlines, and although enjoying only a limited run of one weekend, the drama captivated the attention of a nation, and distracted us from the actual problems facing the country – such as the warrantless electronic surveillance of American citizens.
In the thick of the “Shutdown” theater, and unaffected by it, the Congress quietly passed, and the president quietly signed, legislation that extended for six full years Section 702 of the Foreign Intelligence Surveillance Act. This in effect allows the government to continue gathering and using electronic communications by American citizens unsuspected of any criminal activity, and without bothering to ask a court for permission.
This was the first reauthorization of FISA surveillance powers since Edward Snowden revealed in 2013 just how dark and pervasive these programs had become. It also came in the wake of recent evidence that these powers were employed by the Obama administration against then-candidate and president-elect Donald Trump. One might have hoped that with this background, there would have been meaningful debate about reauthorizing Section 702. Or, at the very least, amendments to finally bring it into compliance with the Fourth Amendment. But it was not to be.
Instead, debate was attempted, but was quickly shut down; and, amendments presented, but were rejected by both parties. At the end of the process, FISA reauthorization sailed through the House and Senate late last week with bipartisan support.
Despite the popular narrative in Washington of inter party intransigence, Republicans joined hands with Democrats to again allow unconstitutional surveillance of American citizens; barely pausing to consider curtailments of these powers despite overwhelming evidence of abuse. Neither party was willing to “shut down” government over it; nor was there a need, with overwhelming support coming from both aisles. Both sides had their priorities: protecting illegal aliens was more important to the Democrats, and keeping “non-essential” government workers in place took precedence for Republicans.
As to the slight tweaks to the law providing “protections” in the post-Snowden world (or, more likely, to assuage the guilt of lawmakers rushing to reapprove legislation they know is widely abused against their constituents) -- they provide no substantial burdens to agencies involved. They merely continue an environment in which the former head of National Security, James Clapper, felt emboldened enough to perjure himself in front of Congress knowing full well he either would not be caught, or if he was, nothing would ever come from it because of the nature of his work (“national security”).
It was a good bet. The statute of limitations runs out on him this year.
While the new version of Section 702 pays lip service to the Fourth Amendment -- for example, “requiring” law enforcement to obtain a warrant to search the results of data-based intercepts, it carves out virtually limitless exceptions for the Attorney General to otherwise use this information in criminal proceedings, making such warrants more of a formality, not a necessity. And, given that anything the FISA court does is secret and ex parte, and the reasons for granting a court order for surveillance are as broad as the latitude given to attorneys general, a formality it certainly is.
As for oversight of these agencies, one need only look to the recent “memo” outlining what the public has been told are extraordinary abuses of FISA power by one administration against the man who would become President of the United States. Was this memo made public, even to Congress, before the vote to reauthorize FISA; notwithstanding that disclosure was well within the power of Congress or the White House to do so? No. Why not? As noted privacy advocate Judge Andrew Napolitano suggested on FOX News recently, it would have undermined support for the very same spy powers abused in the worst way imaginable. Napolitano suggests this was also the same reason why Trump had a sudden and radical reversal on his criticisms of FISA.
“I suspect that leaders in the intelligence community hurriedly convinced the president that if he sets aside his personal unhappy experiences with them and any constitutional qualms,” Napolitano noted, “they will use the carte blanche in the FISA amendments to keep us safe.”
So much for taking a bite out of the Deep State.