Skip to main content

OP-ED: Bad FISA bill could lead to a repeat of 2016's anti-Trump spying

March 11, 2020

In 2016, corrupt and politically motivated senior officials in the intelligence community used the Foreign Intelligence Surveillance Act to spy on then-candidate Donald Trump and his campaign. Their motivation was to prevent Trump from becoming president.

Portions of the FISA law expire on March 15, 2020, unless Congress passes a law that extends the pernicious provisions. Trump has justifiably demanded that any law extending FISA include dramatic reforms to protect civil liberties.

A bill put together by some Democrats and Republicans makes cosmetic changes to FISA, but those alterations make no substantive changes. Trump and everyday people will remain at risk.

The changes fall far short of the substantial reforms demanded by the president, and by a large bipartisan, informal coalition in Congress. For example, the FISA revisions ostensibly protecting the public are, in part, limited to protecting members of Congress and candidates for Congress. Can you imagine?

But it really isn't surprising that a legislative body that gives itself subsidies to pay for health insurance required under Obamacare wants to give itself special protection against the intelligence community while leaving average people at risk.

Advocates for this travesty point to the fact that they are lengthening prison time for those who abuse their power — as we saw when senior intelligence officials lied to the FISA court to get warrants to spy on the 2016 Trump campaign.

Allegedly, these potentially lengthy prison sentences will deter unethical, criminal, or politically motivated abuses of the purported FISA protections. But in reality, no one has even been charged on offenses committed, as outlined by the inspector general who looked at these matters.

Many of the wrongdoers in 2016 remain in the intelligence apparatus. Failure to prosecute the criminal acts committed by those who are charged to enforce the law undermines the claims that these individuals will clean up their agency.

Not surprisingly, the uniparty in Washington, including personnel in the intelligence apparatus, want to maintain the status quo. They do not want accountability.

Efforts to strengthen woefully weak protections for citizens were rebuffed by the attorney general. Instead of mandating that an advocate be appointed to protect the rights of citizens in these secret hearings, judges may optionally consult with an "amicus," whose role will be to provide legal counsel.

In other words, a glorified law clerk, not an advocate to protect constitutional rights.

In reality, Congress should allow this anachronistic law that has been so severely abused to expire.

Even if FISA is allowed to end, our intelligence agents will continue to do what they do best: surveil non-Americans and ascertain dangers to our country. If the government personnel believe they need to spy on American citizens, obtain their records, or wiretap them, the government can apply for warrants and subpoenas just as it does daily in criminal cases.

Good process produces good policy, and in turn, good policy results in good politics. The process here proceeded without taking up the legislation in either of the committees of jurisdiction, Judiciary or Intelligence. No one was allowed to offer amendments to try and improve the bill. Bad process here has resulted in bad policy.

The reality is that this bill, in its current form, will not prevent the misconduct of 2016. We would be safer if the bill simply expired. I am hopeful that Trump will veto this bill and allow Congress to make a better attempt to produce a true reform to FISA.