FISA reform, real and imaginary

Three provisions of the Patriot Act will expire unless they are reauthorized tomorrow. As described by Andy McCarthy, they involve:

(a) roving wiretaps, which allow agents to continue monitoring, say, a terrorist who uses burner phones to try to defeat surveillance;

(b) “lone wolf” authority, which allows agents to monitor a foreigner who appears to be involved in terrorism without evidence tying him to a known terrorist organization; and

(c) the court-authorized collection of business records — a power long unremarkably exercised by criminal investigators (and which, if reauthorized, would no longer permit intelligence agents to engage in the controversial bulk-collection of telephone metadata).

Reauthorizing these provisions should be a no-brainer. As McCarthy observes:

Congress has reauthorized them, repeatedly, because they help protect us from terrorist attacks. Their value is so plain to see that they should not be subject to sunset clauses at all — the clauses should have been removed, with the proviso that Congress could always amend them (as lawmakers have done with the business records provision) or even repeal them if truly egregious abuses occurred.

Yet, a bipartisan coalition of Senators, including the chronically irresponsible Rand Paul and Mike Lee, have resisted reauthorization. In this effort, they seek to tap into mainstream conservative unhappiness with the FISA abuse that enabled the Obama administration to spy on Carter Page of the Trump campaign in 2016.

It is obvious, however, that the three Patriot Act provisions cited above have nothing to do with the FISA abuses that rightly upset President Trump and mainstream conservatives. McCarthy puts it this way:

[T]hese three tools have nothing to do with FBI accountability. They have nothing to do with the bureau’s infamous “Crossfire Hurricane” probe. Indeed, they have very little to do with FISA — and nothing to do with the Russia-related malfeasance that comes to mind when Paul, Lee, and Trump supporters rail about “FISA reform.”

These are PATRIOT Act provisions. Though they are being threatened under the pretext of “fixing” FISA, they were enacted nearly a quarter-century after the FISA statute. They are labeled “FISA” only because Congress happened to insert them into the FISA sections of the United States Code.

Letting the three provisions expire is not FISA reform. The Senate should reauthorize them.

The more interesting question, which is not on the table tomorrow, is what to do about the FISA court. Broadly speaking, I see three possible answers: (1) get rid of the court and prohibit the kind of surveillance it authorizes (or, in rare cases, declines to authorize), (2) get rid of the court and allow the government to engage in that kind of surveillance without judicial authorization, (3) keep the court and consider reforms that might better safeguard against abuses.

I certainly don’t favor the first option. Domestic surveillance of suspected terrorists and agents of our enemies is an important tool in protecting national security.

The second option, removing the judiciary from the process, is tempting. McCarthy favors it.

Some oversight of domestic surveillance by the executive branch is required. But McCarthy contends that the judiciary is ill-suited to provide it. He argues in favor of aggressive oversight by Congress, a branch accountable to the people.

Perhaps that’s the way to go. However, I worry that Congress is too dysfunctional in multiple respects to be trusted with the task McCarthy envisages. If so, then the third approach — retaining the FISA court, or something like it — might be the best option.

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