With only days left before the expiration of a massive surveillance bill and Congress’ Christmas recess, many lawmakers are either scrambling to reinstate the law’s programs, or are resisting and stalling to see deep changes, and even maybe its ultimate demise.
The Foreign Intelligence Surveillance Act (FISA), specifically Section 702, which was created through congressional amendments to a previous bill, empowers federal intelligence agencies with the ability to collect data on foreigners suspected of crimes. But due to the inherent nature of surveillance, as well as the broad powers ostensibly afforded in the law, the communications of law-abiding Americans are often scooped up in the process as well.
Primarily due to these circumstances, Republican Sen. Rand Paul of Kentucky says he is willing to go to last-resort measures to stop it from being renewed in full.
“Well, I am never a fan of shutting down government, so that’s not my intention,” Paul said on Fox News Thursday after being asked if he would oppose any spending bill if the pre-existing FISA bill is maintained, or new versions of the FISA aren’t drafted in the way he wants. “I am a fan of defending the Bill of Rights, though, and it’s pretty important. Right now we have a spy program that spies on foreigners — I’m okay with that.”
I’m never a fan of shutting down government so that’s not my intention. I am a fan of defending the bill of rights, though. pic.twitter.com/qJ9Sc298Ep
— Senator Rand Paul (@RandPaul) December 21, 2017
“But it collects a lot of information on Americans. They won’t even tell us how much, but we think millions of phone calls, millions of emails, millions of internet searches are caught up in this huge database,” he continued. “And it should not be used on Americans without Constitutional protections. Right now, our fear is that they can sort through all of this information and accuse you of a domestic crime, but you don’t get the protection of the 4th Amendment or of the Constitution.”
Democratic Sen. Ron Wyden of Oregon and Republican Sen. Mike Lee of Utah have joined Paul in his protests against FISA and Section 702 throughout the year, and even more so in recent weeks and days as little time for discussion is left.
“A four-year authorization without any debate here in the Senate is simply unacceptable,” Lee told The Daily Caller News Foundation, referring to a renewal proposal. “The collection of private data by the federal government, a government which has been repeatedly hacked by foreign powers, is not in the security interests of the American people. This program needs reforms, not a rubber stamp.”
Due to such backlash, at least partially, Congress will likely be forced to try to pass a short-term spending bill and delve into the nuances of a fuller spending bill in January upon return from the holidays.
That short-term spending bill may still include funding for the FISA spying program, according to certain reports.
But how much of that even matters is unlikely as the spying program wouldn’t just end abruptly. In fact, the Trump administration says the NSA and FBI can continue utilizing FISA. So the real battle over appropriate surveillance, as well as spending, will likely come in late January.
A large amount of lawmakers have shown support for new legislation, rather than the law that has been in place for years.
I agree with @RandPaul & @SenMikeLee. I will vote against any spending bill that includes a reauthorization of Section 702 of the #FISA law. Section 702 is unconstitutional and needs to be significantly reformed.
— Raúl R. Labrador (@Raul_Labrador) December 21, 2017
Lee co-sponsored a proposed legislative solution from Paul and Wyden called the USA RIGHTS Act, which aims to “protect the Constitutional rights of Americans” while, in their minds, stopping short of hamstringing intelligence authorities.
The bill, according to Neema Singh Guliani, the legislative counsel for the American Civil Liberties Union (ACLU), is not perfect, but “represents a significant step forward” since it refines some of the extensive liberties agencies have allegedly been taking with their surveillance practices. (RELATED: The Battle Over The Government’s Massive Surveillance Powers Has Arrived)
There are, of course, opponents to the stalling of a spending bill that superficially equips the intelligence community.
Sen. Tom Cotton of Arkansas, along with the support of 13 other Republican senators including John McCain of Arizona and Marco Rubio of Florida, introduced legislation in June that would permanently reauthorize and cement Section 702 (as well as the entirety of Title VII) of FISA.
And the House is reportedly expected to vote on the aforementioned short-term spending bill sometime Thursday or Friday (right before recess) to ensure the government is funded through at least Jan. 19, but also to explicitly mandate a limited extension of Section 702, which could conceivably help buttress future arguments. Proponents of FISA as is could then couch their surveillance support in a bill that also includes funding for health insurance programs and other defense initiatives, although long-term implementation would still likely be up in the air.
Wyden slammed the piece of legislation, calling it an “eleventh-hour attempt” and “sneak” attack.
“This kind of rushed, secretive process is exactly the wrong way to write laws governing important national security programs,” Wyden said in a statement. “It does nothing to check the warrantless backdoor searches of Americans’ communications. The bill also fails to codify the current prohibition on ‘abouts’ collection, in which communications entirely among innocent Americans can be swept up if they reference a target’s email address.”
Guliani alleges that, using “legal gymnastics,” officials within government have taken it upon themselves to collect information that is merely “about” the target, a dubious classification that opens up surveillance to a wide variety of justifications.
The NSA announced earlier in the year that it was going to stop that practice, at least temporarily. But like Guliani, many have reservations that it has at some point continued the practice, if it even ever stopped in the first place.
Stewart Baker, the first assistant secretary for policy at the U.S. Department of Homeland Security under former President George W. Bush says, “on things like that, they tend to be Boy Scouts” — meaning that they probably will comply. “The idea of saying ‘lets publicly claim to be doing one thing and then do something different’ is just not how the intelligence community tends to operate.”
Overall, one of the legislative battles of the year is coming down to the wire. It has become somewhat more certain that a more full-scale solution — whether its complete reauthorization or passage of a different piece of related legislation — is unlikely. What is less clear is if a huge surveillance program will be ceremoniously preserved through a short-term spending bill, or if politicians like Paul will be forced to resort to famous stalling tactics to increase the chances of a more vigorous debate over surveillance in the near future.
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