Another Chance To Create Meaningful Surveillance Reforms Is Dying On The Congressional Vine

Trumpist Republican outrage (most of it manufactured) over being spied on by the US government almost led to significant reforms to Section 702 surveillance powers, specifically the loophole the FBI abuses to search for Americans' communications in the NSA's foreign-facing haystack.

But that all got scuttled during the infighting and increasing desperation to just give the Intelligence Community what it wanted without asking too many questions. Some reforms" were implemented, but the most significant reform agreed upon did nothing more than protect high-ranking government officials from unconstitutional snooping.

For the rest of us, we received something that hasn't even begun to be implemented yet, apparently because everyone's just waiting for the 2024 election dust to settle before deciding what parts of this reform move might satisfy their own personal or political interests. Whoever ends up in the White House might decide which direction this finally moves, but for now, the effort is unofficially on hold, as Martin Matishak reports for The Record.

The roster of the FISA Reform Commission" was supposed to be finalized in July and formally begin work this month to examine the powers granted to U.S. intelligence agencies under the Foreign Intelligence Surveillance Act. Congress chartered the panel under legislationenacted in Aprilto extend the controversial Section 702 of FISA for two years, just as those electronic surveillance powers were set to expire.

[...]

The new commission is supposed to feature the No. 2 officials from the Office of the Director of National Intelligence, the departments of Defense, State and Justice, and the head of the Privacy and Civil Liberties Oversight Board - an independent, bipartisan panel of executive branch advisers that monitors the government's spying and counterterrorism apparatus.

The top four congressional leaders, in consultation with the heads of their respective Judiciary and Intelligence committees, also are supposed to pick three members each to serve on the panel - one lawmaker and two non-members.

Obviously, anything two-thirds staffed by intelligence agency officials is likely going to generate few, if any, actual reforms. But the good news is that the PCLOB was also invited - a creation of previous reforms that has, at times, managed to act as an adversarial force and given the power to dig through existing programs to find constitutional violations.

So, there's a chance something good could come of this. But it seems like we may never know. The appointments that were supposed to be made by July still haven't happened. And now that Congress is on semi-hiatus until mid-November, nothing's going to move forward any time soon. In fact, it's almost guaranteed that nothing will move forward until the middle of next year, once all the fallout of the presidential election is (hopefully) under control.

But it is instructive to see where at least a little movement has been made. And it hasn't been on the Republican side of the aisle. Sen. Marco Rubio told The Record that legislators might be waiting around to see who's going to be in power before moving forward with things. But that uncertainty isn't preventing long time advocates of surveillance reform from acting, presumably because they want to make things better for all Americans, rather than just do whatever's better for the new boss (who, in this case, might be one of the old bosses).

Democratic Sens. Mark Warner of Virginia and Dick Durbin of Illinois, the chairs of the Intelligence and Judiciary panels, have forwarded names to Majority Leader Chuck Schumer. Rubio couldn't recall if he had and it's unclear if his Judiciary counterpart, Lindsey Graham (R-SC), had done so.

Who else is holding this back? Why, it's none other than the same party that was so angry about secondhand surveillance it almost managed to prevent the reauthorization of Section 702.

There's been far less progress in the House.

The lower chamber is home to some of the most ardent supporters of former President Donald Trump, who has railed against the FISA authority for years. At one point in the last renewal debate, he urged members to KILL FISA" in a social media post, forcing leaders to rush to rework the proposal.

You would think House Republicans would be moving forward with this, considering the man they want to return as president specifically told them to get busy with the fucking up of FISA. But there's a conflict of interest at play here, so to speak. While Republicans might welcome an opportunity to limit the surveillance powers of a Democratic Party regime, they want to preserve these powers in case their man makes his way back into the Oval Office.

On top of that, most Republicans are fine with extensive surveillance - foreign or domestic - as long as it's perceived to be spying on foreigners with browner skin, rather than the white Republicans they mostly are.

And as much as politicians love to suggest some problem be handled with yet another committee, panel, or other bureaucratic grouping, they're far less willing to set aside funding for them, especially if they're not really sure these groups will draw the conclusions they want them to.

For now, the committee is still little more than a proposal, and an unfunded one at that. Given that the last fight over Section 702 managed to buy the power just a couple more years, perhaps the most realistic expectation is that this project will languish until the next renewal, at which point it might be eliminated completely.