Speaker Mike Johnson has reportedly quashed a move to slip the reauthorization of the Foreign Intelligence Surveillance Act (FISA) into National Defense Authorization Act (NDAA). Under pressure from the intelligence bureaucracy and its allies in Congress it appears FISA won’t be reauthorized, but it will be extended in the NDAA until sometime early next year.
FISA is one of the most powerful tools of the Deep State and was the vehicle used for the surveillance and oppression of candidate and later President Donald Trump, Gen. Mike Flynn, Carter Page, George Papadopoulos and potentially others caught up in the Democrats’ Russiagate conspiracy.
Now that the permanent extension of FISA appears to be off the table conservatives must demand that Speaker Johnson and other congressional leaders allow the Judiciary Committee to consider “The Protect Liberty and End Warrantless Surveillance Act,” and the merits of proposals to rein in the Deep State’s powers under FISA.
Editor's Note: Our friends at Americans for Limited Government have recently come out in favor of the "Protect Liberty and End Warrantless Surveillance Act" you can read their endorsement through this link.
The Judiciary bill would limit how many FBI agents can search the Section 702 database and would set up penalties for violations under FISA, ostensibly limiting the extensive “unmasking” of U.S. person targets that occurred during the Obama administration.
As Rep. Andy Biggs explained in a statement to Breitbart:
America’s intelligence community continues to conduct a warrantless, mass surveillance campaign on innocent citizens. In 2021 alone, the FBI misused FISA 278,000 times to spy on American citizens – including a U.S. congressman and political donors. Our civil liberties are at stake. Without serious reforms to FISA 702, our Fourth Amendment rights will be all but gone. My legislation addresses numerous loopholes in federal law to end this unconstitutional practice and to ensure rogue agents are held accountable. I am grateful for the bipartisan, bicameral effort to overhaul the FISA 702 spying authority. I call on my colleagues to pass this legislation into law.
Rep. Biggs is right, and in a lengthy article for Americans for Limited Government, our friend Robert Romano, the organization’s Vice President of Public Policy explained in a must-read article why penalties for abuse of the FISA tools are absolutely necessary, but the current draft may be inadequate.
The proposal creates a clear prohibition: “no officer or employee of the United States may conduct a query of information acquired under this section in an effort to find communications or information the compelled production of which would require a probable cause warrant if sought for law enforcement purposes in the United States, of or about 1 or more United States persons or persons reasonably believed to be located in the United States at the time of the query or the time of the communication or creation of the information.”
However, noted Mr. Romano, there are four loopholes that would not have prohibited the Carter Page FISA warrant issued in 2016 against the Trump campaign, which was issued because Page was suspected of being a foreign agent. That would still be allowed.
To make the accusation, as happened with the Trump campaign beginning in Oct. 2016, the FBI and the Justice Department had to give the FISA Court a “statement of the facts and circumstances relied upon by the applicant to justify his belief that… the target of the electronic surveillance is a foreign power or an agent of a foreign power…”
In other words, the reforms assume that the national security organs of the Deep State are not going to simply lie as they did in the Trump investigation.
The answer to that problem might appear to lie in a new provision proposed in the and summarized by Mr. Romano as:
…new adversarial proceedings, in which case the court “shall… appoint 1 or more individuals who have been designated… not fewer than 1 of whom possesses privacy and civil liberties expertise, unless the court finds that such a qualification is inappropriate, to serve as amicus curiae to assist the court in the consideration of any application or motion for an order or review that, in the opinion of the court… presents a novel or significant interpretation of the law; … presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution of the United States; …. presents or involves a sensitive investigative matter; … presents a request for approval of a new program, a new technology, or a new use of existing technology; … presents a request for reauthorization of programmatic surveillance; … otherwise presents novel or significant civil liberties issues; or … otherwise involves the activities of a United States person…” in which a “sensitive investigative matter” would be defined as “a domestic public official or political candidate, or an individual serving on the staff of such an official or candidate; … a domestic religious or political organization, or a known or suspected United States person prominent in such an organization; … the domestic news media; or… any other investigative matter involving a domestic entity or a known or suspected United States person that, in the judgment of the applicable court … is as sensitive as an investigative matter.”
The idea that there would be an adversarial proceeding at the Foreign Intelligence Surveillance Court, “unless the court issues a finding that appointment is not appropriate,” strikes us as no protection at all.
If there is one lesson the Russiagate scandal and the FBI’s complete fabrication of the predicate for its “Crossfire Hurricane” investigation of Donald Trump and associates demonstrated it is that without vigorous adversarial proceedings the FISA court is just going to rubber stamp applications for collection against Americans, especially if they are unpopular with the Washington establishment.
What’s really needed to minimize potential FISA abuses is a full-time public advocate or ombudsman who will act as the adversary in all FISA cases, not just the ones where the Foreign Intelligence Surveillance Court decides to allow one. That, and severe penalties for abuse, are the only ways the civil liberties of Americans can be protected in the face of a politicized Deep State with access to the near-omniscient intelligence apparatus of the federal government.
The Capitol Switchboard is (202-224-3121), call today and tell your Senators and Representative you demand that any reauthorization of FISA include a full-time public advocate or ombudsman and severe penalties for anyone abusing the powers of, and information collected through, FISA.
Addendum: How near-omniscient is the intelligence apparatus of the federal government?
As Robert Romano documented, the federal government has the ability to download and store all communications that occur in the U.S., a capability revealed in 2013 by former National Security Agency contractor Edward Snowden, who subsequently fled to Russia.
The capability appeared to be admitted to by former National Security Agency (NSA) head Gen. Keith Alexander in testimony to the Senate Appropriations Committee on June 12, 2013 admitting that phone metadata on everybody is in fact being collected in real-time.
Tim Clemente, a former FBI counterterrorism agent, on May 1, 2013 on CNN’s Out Front with Erin Burnett, speaking about how the FBI could go back in time to get the contents of conversations in the context of the Boston Marathon bombings by the Tsarnaev brothers.
Burnett asked if the government could listen in, after the fact, to telephone conversations between Katherine Russell, widow of the deceased Boston terrorist bombing suspect, Tamerlan Tsarnaev, and her late husband.
Clemente nonchalantly claimed it was possible: “[T]here is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation.”
Go here to read Robert Romano’s “House GOP bill restricts the use of the Foreign Intelligence Surveillance Act, but it wouldn’t have stopped Russiagate or mass surveillance” in its entirety.
Foreign Intelligence Surveillance Act (FISA)
National Defense Authorization Act (NDAA)
The Protect Liberty and End Warrantless Surveillance Act
Penalties for FISA Abuse
obstruction of an official proceeding
Carter Page warrant