Maybe Congress hasn’t gotten pushed all the way back to Square One on renewing the Foreign Intelligence Surveillance Act (FISA), but it’s not easy to see a path forward, either. Conservatives and progressives combined forces in the House to kill Nancy Pelosi’s renewal bill, which finally got pulled from the floor this morning. Donald Trump upended a fragile renewal agreement, thanks to his anger over the role of intelligence in the debunked Russia-collusion claim that tied up his presidency for the past three years.
As it turns out, that has its costs:
House Democratic leaders on Thursday withdrew legislation that would revive expired F.B.I. tools to investigate terrorism and espionage and add privacy protections for Americans, after a fragile bipartisan compromise on the bill collapsed following an abrupt repudiation by President Trump.
The retreat left uncertain the fate of efforts to overhaul national-security surveillance while extending three partly expired tools that federal law enforcement officials use in such cases. Just days ago, the bill had appeared poised to become law, after initial approval by both the House and Senate.
But support for the measure among Republicans collapsed after Mr. Trump intervened to urge them to reject it, and progressives then said they could not support the bill without greater privacy protections. With votes bleeding from both flanks, House leaders delayed a vote late Wednesday and then called if off altogether on Thursday rather than let it fail.
Speaker Nancy Pelosi, who had spent much of the last 24 hours trying to salvage the bill, said the House would instead initiate negotiations with the Senate to bridge their differences before attempting to clear the bill for Mr. Trump’s signature.
So what now? Technically, this means that the FBI can’t follow up on any US citizens that might be in contact with foreign spies, so that makes counterintelligence and counterterrorism efforts much more difficult. Congress passed FISA after Watergate to proscribe domestic intel surveillance on Americans unless absolutely necessary, with a warrant authorized by a Foreign Intelligence Surveillance Court judge. Without FISA, the FBI can’t get warrants, and without warrants, domestic surveillance on US persons is a crime. That might present a few problems when it comes to threats like home-grown jihadis, foreign disinformation campaigns, and so on.
That, however, is precisely why the FBI had to be extraordinarily scrupulous in the use of its FISA warrants — to protect those tools from becoming political footballs and thereby threatening their existence. Compound that with the serial lies that James Clapper told Congress about domestic surveillance a few years before Crossfire Hurricane, and suddenly the federal government starts looking like a bigger threat to the American way of life than terrorists and foreign espionage. That view has become surprisingly bipartisan, too:
Sen. Ron Wyden, a Democrat and leading privacy rights proponent in the Senate, announced he will not support extending the FISA provisions with the Lofgren-Davidson amendment because statements provided to the New York Times by House Intelligence Committee Chairman Adam Schiff indicate the amendment still permits dragnet collection of online activity.
Rep. Liz Cheney (R-WY) changed her mind to oppose it as well, noting that neither the House nor Senate versions of the extensions address the “abuse” that has already taken place under FISA. Cheney, however, also worried that the proposed reforms in the House package might do more damage:
Rep. Liz Cheney, the chairwoman of the House Republican Conference, said Wednesday that she was opposed to the bill as presented in the House this week because those new protections could undermine security.
“FISA is a crucially important set of authorities and it’s a set of authorities that was abused,” the Wyoming Republican said. “We have to make sure that we deal with the abuse and that we address the abuse, but we should not push through a bill which, in my view, would fundamentally weaken our ability to keep the nation safe because of the amendments that have been added to that bill, and we shouldn’t do that with proxy vote.”
At some point, Congress will have to find a way to allow the FBI to have this capability, but this time it had better come with a lot more accountability. No more uncontested applications, and no more sight-unseen trust from FISC judges, either. Violations of the law and misrepresentations to the FISC should result in criminal prosecution every single time, and Congress has to take a much more active role in oversight of this process. The FBI is one hell of a lot less likely to ask for a FISA warrant on campaign advisors if they know that members of both parties will see the application on the FISC docket.