Senate May Try To Sneak A Clean Reauth Of Surveillance Powers Into A Must-Pass Coronovirus Bill

Legal Issues

from the conspiracy-theorists-v.-surveillance-apologists dept

The USA Freedom Act is up for renewal, bringing with it the usual arguments for preserving the surveillance status quo. But this administration is a little bit different. President Trump remains convinced a Deep State conspiracy exists that is actively trying to unseat him. The FBI added some fuel to the conspiratorial fire by intentionally misleading the FISA court during its investigation of former Trump adviser, Carter Page. The FBI’s omission of evidence it had indicating Page wasn’t acting as an agent of a foreign power allowed it to continue its surveillance without legal justification.

This has made Trump wary of writing a blank surveillance check. Pervasive surveillance is fine, as long as it doesn’t target Trump or his staff. But Trump also firmly believes in sacrificing rights and freedoms on the altar of national security, so there’s a new tension on display here.

Attorney General Bill Barr is telling Republicans to listen to Barr’s heart and just shove this thing through, no matter what Trump’s personal preferences might be.

Attorney General William Barr urged Senate Republicans on Tuesday to renew expiring provisions of a controversial surveillance law that has come under fire from President Donald Trump after its use in investigations into Russian interference in the 2016 election.

And it appears senators are listening… or at least their frontmouth is. Senate Majority Leader Mitch McConnell says it’s too important to let expire, much less discuss.

“These tools have been overwhelmingly useful, according to our intelligence advisers, and I hope that when the Senate deals with these expiring provisions in a couple weeks, we’ll be able to continue to have them in law, which will of course provide maximum protection for the American people,” McConnell said.

Maybe some of the tools have been “overwhelmingly useful.” But one definitely hasn’t. The remodeled Section 215 program — operating under alterations codified with the USA Freedom Act — has been a bust. When the NSA wasn’t overcollecting records (despite having to request them from telcos specifically and directly), it wasn’t doing anything useful with the records it did have. The five years under the USA Freedom Act produced a total of two leads, of which only one led to an actual investigation.

Other Republicans seem willing to push the re-up through with little discussion, promising to fix it in post. Senator Lindsey Graham wants to reauthorize it completely, despite being concerned about the issues raised in the Inspector General’s report. Procrastinating on fixing problems first observed more than two decades ago is a pretty lazy take from a party that claims intelligence agencies illegally targeted their president.

A few Republicans are leaning the other way, though, suggesting some more reform of surveillance programs could be on the way.

Rep. Jim Jordan and Sen. Rand Paul have both signaled a desire for some type of reform, with Paul tweeting that he “spoke with Trump,” and that the FISA Court — the secret court which approves certain types of surveillance requests from the intelligence community — should be “forbidden from ever spying on or investigating Americans.”

That’s a nice thought, but there’s no way the FBI (or DOJ, or any of the other fifteen Intelligence Community components) will agree to stop spying on or investigating Americans. The NSA collections are their goldmine of domestic data/communications that can be searched through handy backdoors marked “foreign surveillance only.” Cutting them out of this surreptitious intel supply just isn’t going to fly, no matter how many legislators back this curtailment of their surveillance powers.

More tension. With the Coronavirus almost literally hanging over the proceedings, there’s a chance a clear reauthorization will be tacked onto legislation addressing this issue to ensure it passes without amendments to the USA Freedom Act or the IC’s surveillance powers.

The Trump administration’s request for $2.5 billion to mitigate the coronavirus pandemic is likely to become an unstoppable legislative vehicle — as must-pass legislation that congressional leaders of both parties could use to ram through a reauthorization of the FBI’s call detail records program. Such a move would sidestep the House’s reform effort and instead push through a clean reauthorization of the program.

The Senate, said a Democrat on the House Judiciary Committee, is “threatening to put that clean reauthorization into something like coronavirus funding which would make it impossible to defeat if we don’t come up with a bill here. Pelosi and Schiff will never allow it to expire.”

Some Republican senators want to do some editing of the reauth, mainly for political reasons. Others want zero discussion on the reauthorization and likely would do exactly this to bypass surveillance opponents. It all depends on who gets there first and how much they can add to the Trojan bill before it lands on the president’s desk. Given the urgent need to pass a bill to address the spread of the virus, those wanting zero discussion will probably prevail and it will be five more years of business as usual before the next conversation about surveillance programs and powers.

The good news is there seems to be enough people on both sides of the aisle who want to see some reforms enacted so this may end up being one of those rare “must-pass” bills that doesn’t have a lot of self-serving garbage attached. We won’t know until it’s all hashed out, but this is already an anomaly: a bi-partisan agreement that surveillance powers are being abused and some actual oversight should be done by the surveillance state’s overseers.

Filed Under: congress, coronavirus, covid19, fbi, mass surveillance, mitch mcconnell, nsa, section 215, surveillance, usa freedom, william barr