Yesterday, on an hour or two’s notice, the Rules Committee of the House introduced and voted out a new bill renewing the government’s most controversial PATRIOT Act powers.
Rep. Warren Davidson (R-OH) described the bill as originating with a “coalition of intel hawks and some centrist Republicans and Democrats”. It is significantly weaker than the weak bill previously announced by Rep. Jerry Nadler (D-NY), who chairs the House Judiciary Committee. Nadler looked as if he was going to allow pro-civil-liberties amendments in markup to his bill. It looks like #Resistance Hero and ACLU Honoree Rep. Adam Schiff (D-CA), chair of House Intelligence, swung in to prevent that from happening, nixed the markup, and worked with hawkish Republicans to develop a text weak enough for the intelligence community to accept.
The key to threading this needle was in the complicated politics of surveillance reform in the Trump era. Trump has been angry for years about FBI surveillance, conducted under the Foreign Intelligence Surveillance Act, of people who worked on his campaign. Though the way he has talked about it has often been inaccurate, his concern pointed to real problems with how that surveillance was conducted. Broadly, it’s important to configure our intelligence collection systems so as to prevent intelligence agencies from gaining a whip hand over the politicians who are supposed to oversee them, and we have reason to suspect that the most pernicious elements of that surveillance may not be conducted using FISA at all. This in turn meant that hawkish Republicans, such as Rep. Devin Nunes, who chaired the House Intelligence Committee and who previously had shown no concerns whatsoever about mass surveillance, had an incentive in this round of debates to propose changes that would enable them to say that they had headed off the prospect of future surveillance of Trump-connected people. On their side, hawkish Democrats like Schiff and Speaker Nancy Pelosi (D-CA) wanted to preserve the government’s mass surveillance powers with as few as possible of the reforms demanded by younger, pro-civil-liberties Reps like Rep. Zoe Lofgren (D-CA), Rep. Pramila Jayapal (D-WA) or, God forbid, Rep. Justin Amash (I-MI).
Next, the House will vote on it today under a “closed rule”, which means that no amendments will be allowed; it has to be a straight up or down vote. Then, it’s off to the Senate, where McConnell will happily shoot down the idea of allowing amendments to improve the bill, through the well-known tactic of “filling the tree.” Then, the bill will hare off to Trump’s desk, and the PATRIOT Act will be safe from review for another few years.
This is all worth reviewing, not because pro-civil-liberties folks can affect it – indeed, the process is being designed explicitly so that we can’t – but because it’s illuminating evidence of who our friends and enemies are in the House. We can also see – from the changes surveillance hawks were most anxious to make – what kinds of surveillance abuses they’re most anxious to hide.
For example, Rep. Schiff seems especially anxious to block notice requirements that would mean that ordinary people found out whether their communications were being swept up in PATRIOT Act Section 215 surveillance programs. The natural deduction, as Marcy Wheeler puts it in her analysis, is that “DOJ has something to hide”; that, despite the suspension of the Call Detail Records program (the current incarnation of the call metadata program revealed by Edward Snowden), there is still something happening under Section 215 that would require notification to many more Americans than we might expect, that the government is surveilling their communications or business records.
Sen. Ron Wyden (D-OR), a longtime proponent of surveillance reform, noted in a press release yesterday that the bill as it stands doesn’t “prohibit the government from digitally tracking Americans through their web browsing and internet search history without a warrant”, and “fails to clarify that the government cannot collect information like communications records and geo-location information outside the FISA process and beyond any judicial or congressional oversight.”
Basically, every protection in the bill has some sort of broadly worded exception for “national security” or if Attorney-General Bill Barr signs off on it. It’s hard to see this as any sort of progress for surveillance reform. Restore The Fourth opposes this bill and this process, and recommends the adoption of the far superior Safeguarding Americans’ Private Records Act, introduced in January.