The Corner

Law & the Courts

FISA Update

The need to gear up Washington’s response to the coronavirus pandemic is obviously, and appropriately, squeezing out the time available to deal with other issues. So it is with FISA (the Foreign Intelligence Surveillance Act), specifically, with the three PATRIOT Act provisions that were the subject of my column this past weekend — roving wiretaps, lone-wolf surveillance, and business records production.

For the moment, these investigative tools have lapsed, although the shutdown should only last a few days.

Late last week, with the March 15 sunset looming, negotiations among Democrats, divided Republicans, and the Trump Justice Department yielded compromise legislation in the House that would have extend the sunsets to December 2023. The bill prohibited use of the business records provision to conduct bulk-collection of telephone metadata (a program that, as a practical matter, has long been shut down because it was never justified by the government and is unworkable in any event under current law). Beyond that, it prescribed new measures to guard against FISA abuse — not least, attorney general sign-off on any intelligence surveillance of federal elected officials and candidates, enhanced penalties for lying to the FISA court, a clarification of the court’s contempt power, clarifications of the government’s obligation to disclose exculpatory evidence, and an additional layer of legal advisers for the court (even beyond the amicus curiae already provided to by law).

Rich and I discussed these proposed changes on The McCarthy Report podcast last week. Some of them are real improvements. Some are not . . . but they are worth accepting for the greater good of preserving the government’s anti-terrorism capabilities.

There was hope that the Senate would follow suit when it returned on Monday: approve the House compromise legislation and send it to President Trump for signature, without too much interruption (the powers having lapsed at midnight). But, as I explained in the weekend column, Republican Senators Rand Paul and Mike Lee are deeply opposed (as is Democratic Senator Ron Wyden). There was some concern that the House bill would be filibustered, which would have chewed up time the Senate needs to address the coronavirus crisis.

Consequently, the Senate approved a 77-day bare-bones extension of the three expiring provisions, with a commitment that the dissenting senators would be permitted to offer amendments when the House bill is taken up. That’s fine as a stop-gap measure . . . except that the House is not in session this week.

I assume that the House will assent to the Senate’s temporary extension. That may not happen until lawmakers return to Washington on Monday, March 23, though Roll Call reports that it could happen at a “pro forma” session. (The House is not formally adjourned. While in this kind of temporary recess, it conducts pro forma proceedings in which legislative work is not done. The idea is to remain technically in session. I doubt the House would take up FISA this week in that posture, but I suppose it’s possible.)

I also assume the president will sign the temporary extension. He has made noises sympathetic to the Paul/Lee objections (I addressed this, too, in the column). But wholesale FISA reform is not something that, as a practical matter, can be addressed at this fraught moment. If both congressional chambers see the sense in putting FISA on the back burner until the end of May, I think the president will, too.

Finally, I should point out that the expiration of the three provisions does not stop the FBI and Justice Department from collecting intelligence. It just means they have to use criminal-law provisions, rather than foreign-intelligence law. This is undesirable as a long-term arrangement, but it will do in the short run.

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