Opinion

FISA ‘Reform’ Is No Reform at All

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Posted: Mar 11, 2020 12:08 PM
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FISA ‘Reform’ Is No Reform at All

Source: AP Photo/J. Scott Applewhite

The so called ‘reforms’ of the Foreign Intelligence Surveillance Act (FISA) pending in Congress are not true reforms to the government’s ability to engage in warrantless wiretapping of American citizens. The FISA authorizes a secret administrative process that loosely resembles a one-sided court proceeding that allows the surveillance of communications in the name of fighting terrorism.  As we know, these authorities have been abused and are in need of true reform.

The House Republican leadership has marketed changes to the law as reform when the changes do nothing to protect from the federal government abusing these authorities.  The FISA law, contained in expiring provisions of the U.S. Freedom Act, expires on March 15th and should be allowed to expire by Congress to either negotiate a better deal or to let it expire permanently.

Expect bullying and fear mongering by the supporters of warrantless wiretapping to commence in the next few days.  The supporters of the law will claim that these authorities are necessary and urgent, despite the fact they waited until the last possible legislative moment to roll out a bill.  Their goal was to intimidate dissenting members into submission so they fear the political pain threatened by the leadership who will try to blame House members and Senators from slowing the process.  The truth is that the leadership is to blame for rolling out this bill at the last minute. 

The Bill of Rights recognizes that American citizens have a right to privacy. The 4th Amendment to the Constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In other words, the government needs to notify a citizen when they are being monitored by the government.

Liberty minded members of Congress are not happy with the window dressing reforms of current expiring law. My former boss, Sen. Rand Paul (R-KY), tweeted: “None of the reforms prevent secret FISA court from abusing the rights of Americans. None of the reforms prevent a President of either party from a politically motivated investigation.” Rep. Thomas Massie (R-KY) tweeted that the bill was a “sham” and “won’t fix the provisions that allowed the unconstitutional spying on @realDonaldTrump and other Americans.”  The problem is that the solution proposed does not address the real concerns members of Congress have with existing authorities to spy on American citizens.

As usual, the negotiated agreement between Republican and Democratic leadership in the House is not put out to the public so they have an opportunity to weigh in on the reforms. Congress continually acts like the American public’s only right to participate in the big decisions of Congress is to show up every two years and vote. The massive omnibus spending bills, massive reforms of government authority to spy on American citizens and last-minute emergency multi-billion-dollar spending bills are sped through Congress in a way that cuts the citizenry out from the legislative process. The First Amendment to the Constitution recognizes the rights of Americans to “petition the government for redress of grievances.”  That right is infringed when Congress gets behind closed doors and cuts secret deals on legislation then expedites the legislation through the House and Senate.

Details on the agreement are scant. FreedomWorks reports that true reforms were not included like “stronger protections against surveillance orders targeted substantially at activities protected under the First Amendment, such as communications with journalists, protests, or religious observance.”  They point out that there are no limitations on the use of business records collection and that a probable warrant is needed when monitoring U.S. citizens. The reforms don’t include the requirement that surveillance applications directed towards a U.S. person be subject to a “probable cause warrant standard.” The most important reform needed was one to prevent the type of politically motivated surveillance conducted on the Trump campaign in 2016. 

Liberty minded members of Congress should allow these authorities to expire to allow the American people to participate in the crafting of a new law. Congress needs to take a hard look at what happened to the Trump campaign in an effort to impose true reform on the process.  The current bill is not real reform in any sense.

Brian Darling is former Counsel and Sr. Communications Director for Senator Rand Paul (R-KY)