The FISA Bill Flops The surveillance court dilutes political accountability. Better to abolish it.
https://www.wsj.com/articles/the-fisa-bill-flops-11590708290?mod=opinion_lead_pos2
Nancy Pelosi is known for her iron political control over the House, but on Wednesday the Speaker suffered a rare defeat as she pulled a FISA reauthorization bill before what would have been a losing vote. This is a victory for security and political accountability, and it’s worth rehearsing how we got here.
The need to reform the Foreign Intelligence Surveillance Act has been clear since last year’s damning report by Inspector General Michael Horowitz. In March Attorney General Bill Barr worked out a deal with Democratic and GOP House leaders to renew surveillance authority for the FBI and include measures to prevent a repeat of James Comey’s 2016 interference in a presidential campaign.
These provisions included a requirement that the Attorney General sign off personally on any FBI investigation of a presidential campaign, that the FBI set up an office of compliance, and that any application for a FISA court warrant include evidence or information that might be exculpatory. That bill easily passed the House, 278-136, in March.
Then the mischief began. The Senate added an amendment from Mike Lee (R., Utah) and Pat Leahy (D., Vt.) to require an outside “amicus curiae” to review and perhaps rebut surveillance requests. These amici would have extraordinary access to sensitive information.
Justice objected to these and other new provisions, and the hope was they would be fixed in the House. But instead of returning to the original deal, the House considered new provisions of its own. This includes an amendment from Rep. Zoe Lofgren (D., Calif.) that would prohibit the FBI’s ability to collect data such as web browsing and online searches.
All of this is superfluous to the core purpose of the reauthorization, which is to renew three powers. Broadly speaking, they deal with business records related to a national-security investigation, roving wiretaps for targets, and the ability to surveil so-called lone-wolf terrorists. These have nothing to do with FBI abuses in 2016 against citizens such as Carter Page.
The further Congress gets from that original bipartisan deal, the less the new “reforms” have anything to do with addressing known abuses and more with inhibiting the FBI’s ability to do its job. This is why Justice concluded that even these three intelligence tools aren’t worth the bill’s complications. As Assistant Attorney General Stephen Boyd put it, the defeated bill “would unacceptably impair our ability to pursue terrorists and spies.”
This is a crucial point. The executive branch needs to be able to surveil suspected terrorists, often without delay. If officials abuse their authority, they should be punished, perhaps criminally. But as we learned in the case of Mr. Comey’s FBI, the FISA court process dilutes accountability. The FBI lied to the court about the Steele dossier to gain warrants on Mr. Page, then hid behind the court’s approval to justify its warrant requests.
The same applies to the Senate’s “amici.” This merely adds another layer of bureaucracy that dilutes accountability if there’s a surveillance abuse or a terrorist attack that wasn’t thwarted because a warrant was denied. No one is responsible because everyone is. The best outcome would be for Congress to abolish the FISA court and hold the FBI and Justice accountable for their surveillance through Congressional oversight and media scrutiny.
Mrs. Pelosi blamed her defeat on House Republicans for having “prioritized politics over our national security.” But the real and grave offense was the FBI and Obama Justice Department’s abuse of the FISA court for political gain in 2016. Renew the Patriot Act surveillance authorities but abolish the FISA court.
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