Congressional Push to Renew US Spy Powers Remains Chaotic
▼ Summary
– The bill reauthorizes Section 702 of FISA for three years, allowing warrantless surveillance of Americans’ communications, which a federal court ruled unconstitutional.
– Federal agents have used the program to spy on racial justice protesters, journalists, and members of Congress, and oversight mechanisms have been dismantled.
– FBI agents searched databases for material on a New York Times reporter and recommended opening a preliminary investigation on a stalking theory.
– Proposed reforms, like monthly written justifications for queries, are largely cosmetic and lack enforcement power, as the reviewing office has no subpoena authority.
– The bill includes a criminal penalty provision with a tough intent standard that would not apply to past abuses, and a section barring already illegal conduct serves as a symbolic fig leaf.
Leaders in the U.S. House of Representatives unveiled the text of a negotiated bill Thursday to reauthorize a controversial surveillance program that allows federal agents to read Americans’ communications without a warrant. While the agreement appears to include several new oversight measures, it leaves intact the warrantless search of Americans’ communications,a practice a federal court ruled unconstitutional just last year.
The legislation aims to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA) for three more years. It emerged from a deal with House Republican leadership after Speaker Mike Johnson failed to secure a clean 18-month extension last week. The program has become increasingly contentious as revelations have surfaced showing federal agents used it to spy on racial justice protesters, political donors, journalists, and even sitting members of Congress. Oversight mechanisms that once curbed FBI abuses have been dismantled under the current administration, even as the bureau has raided journalists’ homes and the FBI director publicly threatened to investigate perceived enemies of the president.
On Wednesday, The New York Times reported that FBI agents searched federal databases in March for material on reporter Elizabeth Williamson following her February article about the FBI director’s girlfriend. Agents recommended opening a preliminary investigation into Williamson on a stalking theory. The bureau has not disclosed which databases were searched or whether any Section 702 data was involved.
After a Republican revolt sank the White House’s push for a clean reauthorization last Friday, House leaders returned this week with a new bill containing provisions that initially appear to restrict the FBI’s access to the 702 database. Yet the reforms are largely cosmetic. They recreate oversight functions the administration has already eliminated elsewhere and leave untouched the FBI’s core authority to search Americans’ communications without a warrant.
Section 2 of the bill, for example, would require the FBI to send monthly written justifications to lawyers at the Office of the Director of National Intelligence for every query run against 702 data using an American’s identifier. This function closely mirrors one the FBI performed internally until last May, when Director Kash Patel shuttered the bureau’s Office of Internal Auditing (OIA). Crucially, the ODNI office taking over the work has a fraction of OIA’s staff, no subpoena power, and no authority to suppress a query or any data it returned. The reviewing lawyers are also among the career federal employees the White House reclassified as “at-will” in March, stripping their civil service protections. An attorney who flags an improper query can now be summarily fired for doing so.
Section 3 threatens FBI employees with up to five years in prison for “knowingly and willfully” violating querying rules or falsifying compliance. That standard,one of the toughest intent requirements in criminal law,has historically been a graveyard for prosecutions and depends on the Justice Department’s willingness to pursue its own. Notably, none of the FBI’s documented past abuses would appear to meet this standard. The bureau’s explanations for querying activists and members of Congress have consistently relied on claims of inadequate training or unintentional error.
Section 4, titled “Fourth Amendment Requirement for Targeting United States Persons,” bars conduct that is already illegal. The provision is a fig leaf. It lets lawmakers on the fence appear to vote for a constitutional safeguard,or, for those who read no further than the heading, believe that they have.
(Source: Wired)