In 1964, Ronald Reagan famously observed that “[n]o government ever voluntarily reduces itself in size. So governments' programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth.”
Each year since has only proven that view more correct.
Consider, for example, how tenaciously government clings to being able to spy on American citizens.
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Once again, Congress is debating certain Foreign Intelligence Surveillance Act (FISA) powers passed as part of the PATRIOT Act (which are expired at the moment), and, once again, the only idea of “debate” Congress will tolerate is one where you are supposed to automatically vote “yes” at the end of the day to whatever leadership proposes (always in favor of as much power as possible) unless you want to be smeared as being “unpatriotic.”
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Same script. Every time. Under both parties.
So far.
Recently, in keeping with his long-held stance on “draining the Swamp,” President Trump made it clear he wants to reform FISA.
And for good reason. The president has been the victim of the same abuse that many of us have warned about for years.
In December 2019, Department of Justice Inspector General Michael Horowitz released a report revealing “that FBI personnel fell far short of the requirement in FBI policy that they ensure that all factual statements in a FISA application are ‘scrupulously accurate’” in their first application to the secret Foreign Intelligence Surveillance Court (FISC) to spy on Trump campaign adviser Carter Page.
The report went on to say that the IG’s office “identified multiple instances in which factual assertions relied upon in the first FISA application were inaccurate, incomplete or unsupported by appropriate documentation, based upon information the FBI had in its possession at the time the application was filed.”
Ultimately, the IG’s office “identified at least 17 significant errors or omissions” in the initial application and the following three renewal applications to spy on Page.
We do not protect our way of life when we treat the Fourth Amendment as optional. Instead, we erode trust in our institutions and undermine the very values we claim to defend.
No secret, unaccountable court should be allowed to authorize spying on an American citizen again, and my amendment to the House-passed FISA bill will help guarantee it doesn’t happen.
My amendment stops government from surveilling an American citizen unless it gets a warrant from a normal court established under Article III of the Constitution.
It would also force government to abide by the Fourth Amendment and respect due process by preventing it from using information collected under FISA against an American citizen. Government can follow other laws to obtain the necessary information to charge a citizen, including Title III of the Electronic Communications Privacy Act, which lays out how law enforcement can surveil suspects consistent with the Fourth Amendment.
Following that same script Congress often uses to ram through whatever leadership wants, the House waited until nearly the last minute to pass its FISA bill and then left town.
Making matters worse, the House bill simply poses as “reform” while leaving the door wide open for future abuses. The Horowitz report destroys the House’s narrative that government will police itself.
The House bill is so weak that the provisions purportedly designed as a response to the Carter Page fiasco would not have protected Carter Page. Yet the Carter Page story is only one example of a secretive system abusing its authority to spy on the American people.
We know government used Section 215 of the PATRIOT Act to hoard details on innocent Americans’ phone use. Even after Congress reformed that particular program to narrow the focus, the National Security Agency (NSA) still ended up with information it was not allowed to have.
Proving Reagan right yet again, even after the NSA ended the revised program, we’re supposed to believe the power must be extended basically just in case it’s needed. This comes despite government spending over $100 million on the program over a four-year period with next-to-zero results.
The broader Section 215, among those provisions up for renewal, relies on claimed “relevance” to an investigation to grab the records of your life. Such a standard falls far short of our Constitution, which demands due process and makes unreasonable searches illegal.
Here’s the thing.
We should want our counter-intelligence efforts, which I believe fight terrorism much more effectively than endless nation-building, to be as strong as possible, but we do not bolster those programs when we allow for the possibility of sweeping up innocent Americans’ records. Instead, we leave room for once again wasting vital resources that should be focused on actual threats overseas. My amendment ensures government properly directs its FISA powers.
We do not protect our way of life when we treat the Fourth Amendment as optional. Instead, we erode trust in our institutions and undermine the very values we claim to defend.
Yes, in America, we are supposed to do things differently. We were founded on the principle of “innocent until proven guilty,” which is in an entirely different universe than “If you have nothing to hide, you have nothing to fear.” Due process for our citizens is foundational to that system, and I firmly believe the Founders would as adamantly defend your right to be secure in your phone, text and email conversations under the Fourth Amendment as they would your right to use those same tools under the First.
The Founders knew times and technology change. Their ranks included inventors on the cutting edge of such progress. So they crafted a system built on timeless principles.
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This is why I urge President Trump to veto the House bill if my amendment is not included. If my amendment is rejected, American citizens are far safer if the expired provisions remain just that way.
We cannot be confident government will not again abuse its surveillance powers against American citizens unless we remove the possibility.
This week, the Senate will have that chance.
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