Despite recent revelations that the process by which the FBI and NSA gain approval for spying on US citizens is open to abuse, the US Congress is again planning to reauthorize the USA Freedom Act that gives those measures their legal foundation.
This week, the House of Representatives unveiled HR 6172, which will reauthorize the programs. But, despite a growing consensus that there needed to be systemic changes, the bill simply reaffirms the status quo with a few additional provisions that experts say will not only fail to fix the problems but may make them worse.
The situation is similar to two years ago, when a group of senators fiercely opposed the reauthorization of another flawed spying program without significant reforms, but were defeated when it was attached to an end-of-year spending bill: something critics characterized as "an end-run around the Constitution."
This time there is another, slightly larger, coalition of lawmakers that are arguing against reauthorization without proper reform and they might have the president's ear for the simple fact that Trump's presidential campaign in 2016 was targeted under the very rules that Congress now wants to set in stone.
The House Freedom Caucus, which comprises conservatives and libertarians, has put out a statement condemning the bill and at least one member has publicly urged President Trump to refuse to sign it.
"Members of the Freedom Caucus have long called for reforms to FISA [Foreign Intelligence Surveillance Act]," the statement reads. "Recent revelations that FISA was severely and repeatedly used to spy on a presidential campaign are beyond the pale – if the government can misuse this system to spy on a presidential campaign, they can surely do it to any other American citizen."
Carter Page issue
At the heart of that issue was the targeted surveillance of one of the Trump campaign's key figures, Carter Page, whom the FBI feared was collaborating with the Russian government. A subsequent review of the process run through to authorize and then renew surveillance on Page revealed that FBI agents had purposefully misled judges at the secret court that approves such measures and even doctored documents in order to keep the surveillance going.
Due to an almost entirely opaque process in which there is rarely an opportunity for counter-arguments, critics have long warned that the process is wide open to abuse. Efforts by civil liberties groups to even find out what the process is have been met with years of procedural delays and obfuscation.
But with pressure from the White House driving a review of FISA over the Page case, the flaws were formally exposed. As such the House Freedom Caucus wants to see real changes: "Anything short of significant and substantive reforms would betray the trust of the American people," its statement reads.
It also derides the changes that have been made to get lawmakers on board. "Enhanced penalties for abusing the system are insufficient to gain our support particularly when no one has been charged with a crime for previous abuses," it notes, adding: "A proposal for additional scrutiny when elected officials and candidates are the target of investigations similarly misses the point: politicians don't need more protection from government spying than their fellow citizens."
It's not just the House Freedom Caucus opposed to the bill either. Unlikely bedfellows the American Civil Liberties Union (ACLU) are also opposed and have sent a letter to lawmakers urging them not to vote for it.
"Congress has had over four years to consider provisions of the Patriot Act set to expire on March 15, 2020. Despite this, H.R. 6172 is being jammed through without any opportunity for amendments, no markup, and limited debate," it notes. "Indeed, a prior markup of the bill in the House Judiciary Committee was cancelled after it became clear that efforts to improve the bill would likely have prevailed."
The letter argues that it has "become abundantly clear that many of our surveillance laws are broken", citing the Inspector General report into the Carter Page case. "Despite the secrecy around FISA proceedings, the Page episode offers a window into the abuses that predictably follow from giving the government extraordinary powers with minimal checks and no meaningful due process," it argues.
It then lists a number of flaws with the current bill. That it:
- Fails to require that individuals receive appropriate notice and access to information when FISA information is used against them.
- Fails to fully address deficiencies with the FISA court that have led to illegal surveillance – most notably allowing a representative to argue against the government's case in front of the court.
- Fails to limit the types of information, the standard for collecting information and length of time for retaining the information that can be collected under Section 215 of the Patriot Act – this particular program having recently been exposed as an enormous waste of time and money.
It's not clear if the protestations will have any effect, however. The security services have repeatedly proven themselves extremely adept at getting lawmakers on side, and of playing the political game better.
The Attorney General has already signalled that he believes the bill should pass and the changes made to it are sufficient to fix the flaws exposed by the Inspector General's report. And while President Trump has made it plain he doesn't trust the intelligence services, he is also one of the main beneficiaries of the information that they gather. Whether he is willing to veto legislation that will likely be passed by Congress, despite its flaws, is an open question.
The only bills – six so far – that President Trump has vetoed have covered foreign affairs. He has yet to strike down any covering domestic affairs.
On Thursday the President issued a statement via his favorite medium to clarify his position. ®
Many Republican Senators want me to Veto the FISA Bill until we find out what led to, and happened with, the illegal attempted “coup” of the duly elected President of the United States, and others!— Donald J. Trump (@realDonaldTrump) March 12, 2020