Darling: Government Surveillance Authority on Trial in Congress

While Congress is engulfed in a year-end fight to fund government programs into next year and historic tax reform is being ushered to the president’s desk, there is another issue that is sliding under the radar – government surveillance authority.

 I should disclose that I am a paid lobbyist on the issue and have been working on reforms to these programs to make them consistent with the 4^th Amendment right of privacy of all Americans.  There is a strong alliance between progressives and libertarians on this issue who worry that this power has the potential for abuse. Current law allows for Americans’ communications with individuals overseas to be gathered up in a government database and searched for matters unrelated to the war on terror.

The Bill of Rights requires a warrant to be based on “probable cause” and “particularly describing the place to be searched, and the persons or things to be seized.” That isn’t happening right now under the program.

 Reason reported on December 14, 2017 that Sec. 702 of the Foreign Intelligence Surveillance Act (FISA) is scheduled to expire at the end of the year and Congress is trying to bundle a reauthorization of these controversial programs into a government funding bill:

 Some federal intelligence surveillance powers are going to expire in just over two weeks, and a pack of congressmen and -women want to make sure that a renewal isn’t simply shoved into an end-of-year spending bill.

 Leading the charge against this plan are Reps. Justin Amash (R-MI) and Thomas Massie (R-KY). They are leading a bipartisan letter to leadership that argues “there may be temptation to attach reauthorization of the FISA Amendments Act to a large end-of-year legislative package, but doing so would undermine representative democracy by effectively precluding most members of Congress from being heard on the important issues it raises and preventing the public from finding out where their representatives stand.”

They further make the case that “regular order” should be used and that any reauthorization should be conducted by considering a piece of legislation that only deals with this specific issue. Tying a reauthorization of controversial programs to a year end spending bill would put the defenders of freedom in the position of causing a government shutdown as the only tool to force a free-standing stand-alone debate on a bill to reauthorize Sec. 702.

 One of the fears raised in a right-left coalition letter is that this the language the Republican leadership is reportedly seeking to attach to a year-end spending bill may be an expansion, not a reform of the program. If the leadership attaches the “FISA Amendments Reauthorization Act of 2017” that was marked up in the House Permanent Select Committee on Intelligence, then the government will be changing the law to expand authority. This bill may allow the government to conduct criminal prosecutions based on evidence acquired without a warrant.

 The letter signed by 36 organizations makes the following case:

 The proposed bill is not a reform measure.  It does not make “key changes to Section 702 and other intelligence authorities to protect Americans’ privacy rights,” as bill sponsors have suggested. On the contrary, it would expand surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA), grant the government more authority under other provisions of FISA, and could be read to codify current unlawful surveillance practices. Indeed, the bill is measurably worse than a short-term straight reauthorization of Section 702 with a sunset.

 According to the Trump Administration and as reported by the New York Times on December 6 2017, no reauthorization is necessary because the program being used now will not expire until April 26, 2017, so the urge to burry a reauthorization in a year end appropriations bill seems not necessary.  Furthermore, there is legislation that will address many of the concerns of those who oppose the program without reform titled the “USA RIGHTS Act” lead by Sens. Ron Wyden (D-OR) and Rand Paul (R-KY) in the Senate and Reps. Zoe Lofgren (D-CA), Amash and Massie in the House.

According to a press release describing the bill, “the bill reforms Section 702 of the Foreign Intelligence Surveillance Act to end warrantless backdoor searches of Americans’ calls, emails, texts and other communications that are routinely swept up under a program designed to spy on foreign targets. The sweeping authority has been clouded in secrecy, in part because the government refuses to answer essential questions about how it impacts Americans, including who can be targeted and how many American communications the government collects.”

 This approach strikes the proper balance between security and privacy.

 With all the worry about the government using these authorities for matters unrelated to terrorism and national security, it seems reasonable for the Republican leadership in the House to stand down and schedule a real debate for next year when this matter can be considered on it’s own by the House and Senate.