FISA reform delayed over alleged poison pills

The House Judiciary Committee was supposed to vote today on a bill making changes to the Patriot Act and Foreign Intelligence Surveillance Act, portions of which are set to expire next month. It looks like things are on hold, however, following a disagreement involving Congressmen Adam Schiff and Jerry Nadler, and Congresswoman Zoe Lofgren. Via POLITICO:

Rep. Zoe Lofgren (D-Calif.) is preparing Wednesday to offer five amendments that would reform the Watergate-era law, known as FISA, that senior House Democrats see as “poison pills” that would doom the bill in the House. Her push is already rankling top Democrats, who say her proposals would upend months of delicate negotiations that resulted in a bill backed by House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) and House Intelligence Committee Chairman Adam Schiff (D-Calif.).

Due Process Institute confirmed the hearing was scuttled.

It’s disappointing because the USA FREEDOM Reauthorization Act of 2020’s main reform repeals the call detail records program that the NSA was using to collect cell phone call data. There are still questions about whether this reform goes far enough. The uncertainty brought the ACLU and FreedomWorks together for an ad buy targeting multiple Senate and House members on the need to go further on reform efforts:

“The proposal does not go far enough,” said the ACLU’s Guliani on the newly-introduced legislation. “Congress must require additional notice and disclosure for individuals targeted or prosecuted using information obtained from FISA surveillance, limit the types of records that can be obtained by the government under the Patriot Act, and reform the FISA court process to enhance accountability, oversight, and transparency.”

“Congress would be derelict in its duty if it were to reauthorize these surveillance authorities without substantial reforms to protect Americans’ rights to due process,” said Josh Withrow, Senior Policy Advisor at FreedomWorks.

The White House is interested in reform but their push appears different from the bill currently in Congress. Attorney General Bill Barr discussed the issue with Senate Republicans yesterday; a meeting POLITICO reported showed a divide between the party on what reforms are necessary.

Attorney General William Barr told Senate Republicans on Tuesday that the Trump administration could support a clean extension of contentious surveillance laws set to expire next month. And Barr said he could make changes on his own to satisfy President Donald Trump and his allies who have railed against the use of the law to monitor his 2016 campaign, according to senators at a party briefing…

But Barr also sparred with skeptics, primarily libertarian-leaning Sens. Mike Lee of Utah and Rand Paul of Kentucky, according to two people familiar with the meeting. Barr told Lee his criticisms of surveillance law are dangerous, while Paul said Americans shouldn’t be subject to secret FISA courts, one of the people said.

The internal change suggestion by Barr bothers me because it gives more power to the executive branch. I realize people will argue he’s the attorney general and should be able to define Justice Department policy, however, it could allow any future modifications to stay in the dark without ever becoming public. It’s not worth putting more power in the hands of bureaucrats, regardless of who’s in office.

An even bigger debate is whether Congress should let the programs all expire without any sort of re-authorization. It’s a perplexing issue. One can’t help but wonder if having rules on the books presents some sort of legislative barrier preventing abuse by government agencies. The Fourth and Fifth Amendments are supposed to protect Americans from illegal search and seizures, secretive warrants, and the security of documents (ie emails), but U.S. Supreme Court rulings occasionally say otherwise. It seems judicial review only goes so far when the rulings aren’t exactly constitutional.

The FISA items are set to expire on March 15th.