The American surveillance state was built on bipartisanship. But the politics of it are becoming increasingly erratic in the Trump era.
San Diego’s congressional delegation — four Democrats — voted to reinstate a series of intelligence programs that had lapsed in early 2020. Three of those representatives told me that they believed the legislation was critical to national security and came with new, appropriate protections.
The USA Freedom Reauthorization Act grants federal authorities the ability to collect “tangible things” related to national security investigations without a warrant. It passed both chambers of Congress in recent months before the president threatened to veto and House GOP leaders got cold feet. Negotiations are now underway to reconcile the House and Senate versions into a single bill.
Agents who want to open national security investigations need permission from the Foreign Intelligence Surveillance Act court. But the secret judicial body, created in the 1970s after a series of scandals, including one in San Diego, and has long been considered a rubber stamp.
In 2018, it denied in whole only one of the 1,081 requests for electronic surveillance. In December, the Justice Department’s inspector general described “a staggeringly dysfunctional and error-ridden process,” in the words of the New York Times, when the FBI went about obtaining permission to wiretap a former Trump campaign adviser.
In exchange for reinstating federal surveillance powers, Congress has offered to give independent advisers a larger voice in the secret court proceedings and create harsher criminal penalties for abuse. Congress is also considering a prohibition against the collection of GPS and cell site location data.
At the same time, though, lawmakers shot down amendments prohibiting the collection of a suspect’s web browsing history and search queries. And the larger criticism of the court remains: Defendants’ attorneys are still unable to read the FISA applications that allowed agents to collect evidence against their clients, a right afforded in criminal court.
Given all that, I reached out to San Diego’s representatives to ask where they stand and why. Rep. Juan Vargas didn’t respond.
Rep. Susan Davis:
FISA is a key component of our national security. The challenge has always been to balance our national security needs while protecting civil liberties. The bill that passed the House contained more transparency and more protections for civil liberties. The Senate increased those protections and sent it back to the House … I look forward to following those [Senate and House] negotiations and review[ing] the final product.
Rep. Mike Levin:
The Foreign Intelligence Surveillance Act is a complicated and flawed law, but the bottom line is that its authorities are needed to keep our country safe, and it’s always had bipartisan support. While it’s critical for our national security, the program is in desperate need of reform. I voted for the USA Freedom Reauthorization Act to create stronger protections for our civil liberties and rein in powers that went too far. Any other reauthorization legislation must include significant reforms that safeguard civil liberties in order to earn my support. I hope my friends across the aisle will continue to make this a bipartisan effort instead of catering to the shifting views the President conveys over Twitter.
Rep. Scott Peters:
Congress needs to reauthorize the surveillance programs that are critical to public safety. We also must put in place new laws that protect the privacy of citizens; neither will happen until we can come to a bipartisan agreement that can pass both the House and Senate. That’s why I supported the USA Freedom Reauthorization Act in March, a product of bipartisan effort in the House to work out legislative disputes. I will assess my vote on a final bill when I know what’s in it.