Step Up on FISA Reform, Democrats

If not, warrantless searches of Americans’ communications, which Congress has never expressly endorsed, will soon become the law of the land — and the best gift Democrats ever gave President Trump.

January 16, 2018

Cross-posted from the Daily News

Last week, the House of Representatives voted to authorize warrantless searches of Americans’ phone calls and e-mails by the CIA, FBI, and NSA. House Minority Leader Nancy Pelosi had a chance to block this assault on the Constitution, but instead greased its passage. It’s now up to Senate Minority Leader Chuck Schumer to make sure the Senate does not make the same mistake.

The bill would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), currently set to expire on Jan. 19. Section 702 allows the NSA to collect the communications of foreigners overseas. Because the Fourth Amendment doesn’t protect foreigners, there is no warrant requirement, and the foreigner need not be suspected of any wrongdoing. But that means the government is “incidentally” (in its words) picking up millions of phone calls and emails between foreigners and Americans.

To address this problem, Section 702 requires the government to “minimize” the retention and sharing of Americans’ information — in other words, to delete or redact it.

In 2013, however, NSA whistleblower Edward Snowden revealed that the government was doing the very opposite: combing through the data to find Americans’ communications, and using them in its investigations. The government’s internal rules allow it to conduct these “backdoor searches” without any evidence of wrongdoing, and the FBI routinely conducts them in ordinary criminal cases.

The FBI promises it hasn’t abused this power. But prying into Americans’ communications without a warrant is itself an abuse. And it’s not hard to imagine the Trump administration taking advantage of backdoor searches to spy on political enemies, immigrants or Muslims.

One might expect that Democrats would oppose backdoor searches — and Republicans would favor them. But Republicans on the Tea Party right have broken rank with their party’s leadership, and are demanding better privacy protections.

This has left supporters of the status quo with a tricky task: to design legislation that appears to restrict warrantless searches, while in practice allowing them.

Enter Rep. Devin Nunes and colleagues on the House intelligence committee. Their sly solution: a bill that would require the FBI to get a warrant in order to search Americans’ communications in “predicated” criminal investigations unrelated to national security or foreign intelligence.

That sounds like real reform, unless you happen to know — as most lawmakers don’t — that a “predicated” investigation is one that has progressed to a later stage of fact-finding. In 2014, the government’s civil-liberties watchdog office reported that the FBI routinely conducts backdoor searches at the very earliest stages of its investigations.

Which means the Nunes bill’s warrant requirement is designed to have no effect whatsoever.

Forty-five Republicans saw through the ruse and voted against the bill. Had Democrats stuck together, it would have been defeated. Separate legislation that would require the government to obtain a warrant in all cases before accessing Americans’ calls and emails would likely have passed.

Instead, moments before the vote, Pelosi rose to support the Nunes bill and oppose the legislation that would require a warrant. Her support bought the Nunes bill 65 Democratic votes — enough to pass by a healthy margin.

Pelosi claimed the bill contains meaningful protections for Americans’ privacy. Perhaps she fell for the propaganda, or is afraid of seeming soft on national security. What is certain is that she voted to hand the Trump administration unprecedented license to spy on Americans without evidence of wrongdoing.

She also teed up a political victory for the President. Backdoor searches are unpopular. Trump himself has tried to have it both ways, attacking Section 702 in his tweets while his administration works hard to pass Nunes’ bill. If it passes with Democrats’ support, they will shoulder the blame, while Trump will reap the benefits.

Now, to the Senate. Several Republicans there support reform, so if Democrats hold firm, the Constitution will carry the day.

It is time for Schumer, who has stayed quiet throughout the debate, to speak out. Democrats must oppose the Nunes bill. If not, warrantless searches of Americans’ communications, which Congress has never expressly endorsed, will soon become the law of the land — and the best gift Democrats ever gave President Trump.