Columns

No Warrantless Surveillance 'Nonsense' in FISA Reauthorization Bill, Bipartisan Lawmakers Vow

Rep. Thomas Massie (R-Ky.), Rep. Mark Sanford (R-S.C.), Sen. Ron Wyden (D-Ore.), and Rep. Ted Poe (R-Texas) finish a news conference where they were united in their insistence on reforms to the FISA Amendments Reauthorization Act at the Capitol in Washington on Jan. 10, 2018. (AP Photo/J. Scott Applewhite)

WASHINGTON – In a rare display of bipartisanship on Capitol Hill, a group of lawmakers from both parties are pushing for passage of an amendment to the Foreign Intelligence Surveillance Act (FISA) reauthorization bill that would require intelligence agencies to obtain a warrant for surveillance of American citizens.

Rep. Justin Amash (R-Mich.) was optimistic about passage of his amendment as the FISA Amendments Reauthorization Act of 2017 headed to the House floor for debate.

“We’ve added a lot of co-sponsors over the last several days. We feel like we have a great opportunity … to pass this amendment on the House floor to make a difference for the American people – to stand up for the Constitution. And our amendment stands for the simple proposition that when you want to spy on Americans, get a warrant,” Amash said during a press conference Wednesday on Capitol Hill.

Sen. Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee, said the existing versions of the House and Senate bills “allow for substantial warrantless backdoor searches of communications of law abiding Americans” under Section 702 of FISA.

“What this essentially means is every year, thousands of times you have the government search for the communications of Americans in [Section] 702 databases, and we think this is an end-run on the Constitution. We understand there are threats overseas, foreign targets, people we have to be concerned about to protect the safety of the American people – but what we are against is, without a warrant, having the communications of law-abiding Americans swept up in that process,” he said.

Wyden told reporters “there is a lot of nonsense being circulated by opponents of the House efforts” to pass a warrant requirement, including that FISA reformers want new rights for suspected terrorists or that they do not want to prosecute criminals.

“I can tell you, I’ve been on the intelligence committee for 17 years, the government has never said, never once said it needed 702 for typical crimes,” Wyden said.

Sen. Rand Paul (R-Ky.) said because of recent accusations of bias directed at the Justice Department and the FBI there needs to be “more oversight of the intelligence community” because “men are not angels,” a reference to a quote from James Madison.

“We allow information to be gathered on foreigners in foreign lands without the Constitution. Most of us are OK with that. The Constitution really isn’t guaranteed to everyone around the world, it’s guaranteed to us here,” he said. “When you gather information from foreigners in foreign lands without the Constitution, that information is not gathered with constitutional protections and should never be used against Americans – this a bedrock principle of our country. It’s what brings Republicans and Democrats together.”

Paul said information must be gathered with “probable cause” under the Fourth Amendment.

“We want the Constitution to apply to Americans,” he said. “In Section 702, we don’t know because they won’t tell us, but we believe there are millions of pieces of information on Americans in that database – that should not be looked at without a warrant, but even with a warrant should not be used for domestic crime.”

Amash told PJM he has reached out to President Trump and White House officials about supporting a warrant requirement in the FISA reauthorization bill.

“We’ve spoken to representatives of the White House and leaders of the House Freedom Caucus have also reached out to the president on this issue. We’ve explained to him why it’s important and we hope that he’ll be persuaded by our arguments,” Amash said.

The National Security Agency, under the Obama administration, used FISA Section 702 to “unmask” the identities of several Trump campaign officials who were intercepted during surveillance of foreign targets. Amash was asked how his amendment would change the unmasking of Americans under surveillance through FISA.

“In many ways, unmasking is a separate issue,” he replied. “But what’s important is that if you have less ability to search on Americans you won’t have as many unmasking problems down the line.”

Paul said he hopes Amash’s amendment will pass in the House but vowed that he’s ready to filibuster the bill if it does not include a warrant requirement.

“I think it’s great the House has gone first,” he said. “I think the privacy movement is stronger in the House than the Senate, but maybe we will learn something from you guys.”

Rep. Ted Poe (R-Texas) claimed the intelligence community is attacking the Fourth Amendment.

“We are at a point now where the assault on the Fourth Amendment by the intel folks is at a crisis, and I say that because most Americans have never heard of 702. What in the world are we talking about? It’s very simple. The law allows for the seizure of information of foreign terrorists and foreign agents operating overseas and it’s to go after those bad guys, but data is seized on Americans and it is a lot of data,” he said.

Poe said Congress has repeatedly asked intelligence officials to disclose how many times data that’s been collected has been combed for intercepted Americans but “they will not tell us.”

“They refuse to tell, and to me it sounds like they are using that information a lot and they are not doing it under Fourth Amendment guidelines. They search it without a warrant,” he said. “What they do it with it? We don’t know, but it’s a violation of the Fourth Amendment.”

Other lawmakers who attended the press conference on FISA reauthorization included House Judiciary Committee Ranking Member Jerrold Nadler (D-N.Y.), Rep. Thomas Massie (R-Ky.), Rep. Jim Jordan (R-Ohio), Sen. Steve Daines (R-Mont.), Sen. Jon Tester (D-Mont.) and Rep. Zoe Lofgren (D-Calif.).