Is This Election About Democracy, Or Not?

The New York Times reports that the Biden administration is asking a secret court to reapprove its mass surveillance powers for a full year, rather than accepting key statutory reforms that would meaningfully limit its ability to spy on Americans without a warrant.

Sen. Ron Wyden (D-OR), a leading reformer, fired back:

“A broad bipartisan, bicameral coalition agrees that FISA Section 702 should be reauthorized with reforms to protect the rights of Americans. Yet rather than seriously engage with congressional reformers, the administration has decided to short-circuit the legislative process and ask the FISA Court for an extra year of surveillance without any reforms at all. It is utterly ridiculous that the Biden Administration and the Justice Department would rather risk the long-term future of an important surveillance authority than support a single meaningful reform to protect Americans’ rights.”

Biden has consistently argued that voting for him and for Democrats is about preserving American democracy itself. There are indeed objective, as well as partisan, reasons to worry about executive overreach in the context of a Trump victory in November. Trump has explicitly threatened to use the Department of Justice to indict his political opponents, “impound” funds approved by Congress that are being spent in ways he disagrees with, and stack previously professional civil service positions with loyalists. But that doesn’t mean Biden isn’t also overreaching in other ways during his own Presidency. Nothing shows that more clearly than Biden’s visceral, stubborn refusal to countenance Congress meaningfully constraining the executive’s powers of mass surveillance.

Closing the backdoor search loophole and the data broker loophole would do more than almost anything else to constrain a second-term President Trump from surveilling Americans hostile to his agenda. Biden’s proposed, gratuitously long extension of FISA surveillance powers risks handing Trump the keys to a dangerously overmuscled surveillance state – the same man who signed off on a reauthorization of FISA, and deployed elements of the intelligence community against “antifa” and Black Lives Matter protesters.

Democracy is only real if, through the democratic process, ordinary people can peacefully change their leaders, and the laws and policies by which they are governed. As John F. Kennedy put it long ago,

Those who make peaceful revolution impossible will make violent revolution inevitable.

In the FISA debate, the Biden administration and the co-opted House and Senate Intelligence Committees have indulged in a truly extraordinary sequence of lies and shenanigans, designed to prevent either chamber of Congress from being able even to vote on popular surveillance reforms.

The effective message of this bad faith manipulation is as follows, and we’re hearing it loud and clear. It says:

No matter who you support at the ballot box, the FBI, NSA and CIA will keep spying on you.

The democracy you work so hard to maintain, and that you see working on the TV news – all the apparatus and drama of polling stations, ballots, political parties, and horseraces of Who Will Win – is theater, and the real power is held by people you have no power over at all.

You’re allowed to use democratic processes to expand the powers of the intelligence agencies. But if you try to rein the agencies in, we’ll use any means necessary to stop you.

In other words, Biden couldn’t have chosen an action better designed to validate narratives about the “Deep State”, or to undermine his own messaging about November.

The test of whether an elected official really believes in our Constitution is whether they still support it when it limits their own power as well as their opponents’. Briefly, when President George W. Bush was trailing unpopularly to the end of his second term, then-Senator Biden vocally opposed Bush’s exercise of these same government mass surveillance powers, calling them unconstitutional. Now, his National Security Adviser, Jake Sullivan, is painting warrantless surveillance of Americans as so critical to the security of the nation that Congress must on no account be allowed to vote on limiting it. By pursuing this recertification, Biden is saying that he’s actually OK with the risk of President Trump again wielding the power of warrantless surveillance on Americans, provided that President Biden still gets to wield them a little longer.

Biden is able to perceive, and to try to remedy, the evils of surveillance when committed by “countries of concern.” But he is blind to the danger from within his own halls, and to how terribly it is already being deployed against people who care about creating a better world.

The Constitution is primary over whatever the intelligence community chooses to describe in the moment as “national security”; there is no such thing as a “secure” nation that is not also free.

If Biden really means it – if all his talk of saving the Republic is anything more than a cynical ploy to mobilize Democratic votes for November – then he needs to back off on this recertification, drop his opposition to the default warrant requirement for querying of US persons and to language closing the data broker loophole, and start working in good faith with the many legislators of both parties and both chambers who are interested in protecting Americans’ rights. And in their turn, leaders in Congress – Nadler, Jordan, Johnson, Durbin and Schumer – need to make clear to Biden that his scurrying to the secret FISA court will not stop them from setting meaningful limits in this Congress, that will apply whether a Democrat or a Republican is inaugurated in January 2025.