House Freedom Caucus on FISA: Verbal Fireworks

Patrick G. Eddington

In a fiery 40‐​minute press conference attended by almost a dozen House Freedom Caucus (HFC) members, the group discussed the current state of play in the legislative battle over reauthorization of Title VII of the Foreign Intelligence Surveillance Act (FISA), and specifically the Section 702 FISA mass electronic surveillance program that has been the subject of controversy and abuse throughout its fifteen‐​year existence.

Some made clear they were tired of the “spying and lying” and the efforts of other House members to “subvert” the Fourth Amendment (in the words of Rep. Scott Perry [R‑PA]). Rep. Tim Burchett (R‑TN) warned that “we could lose our country” unless real reforms to the FISA Section 702 program are enacted. Rep. Warren Davidson (R‑OH) reminded everyone that “Freedom lost is rarely regained,” and repeated his call for an amendment process to improve a leadership‐​driven FISA bill that every speaker harshly criticized.

The HFC’s top priorities: mandating a warrant requirement for FISA Section 702 database searches involving American citizens, and the enactment of the “Fourth Amendment is Not for Sale Act” to close the “data broker” loophole, which currently allows the FBI and other law enforcement organizations to simply buy sensitive data on US citizens without ever having to get a warrant.

The House Rules Committee will meet tomorrow to decide whether to make such amendments in order in time for an expected Thursday House floor fight over the fate of FISA Section 702.

While the current FISA fight is over the FBI accessing reams of US Person data via the Section 702 database, Bureau personnel are hardly the only federal employees engaging in classified digital fishing expeditions on Americans. The Central Intelligence Agency (CIA) has had its own problems in this area.

As a result of an ongoing, multi‐​year Freedom of Information Act (FOIA) lawsuit against the Privacy and Civil Liberties Oversight Board (PCLOB), Cato recently received a number of highly redacted CIA IG reports covering portions of the prior decade, primarily during the last year of the Bush 43 and Obama administrations.

Of particular note on p. 38 of the CIA IG Semiannual Report covering January to June 2011, is this passage:

For nearly eighteen months, a CIA officer used CIA computer systems to conduct unauthorized searches for information on multiple individuals, including American citizens. The punchline: “DOJ declined prosecution in favor of Agency administrative action.”

The CIA employee in question should’ve been prosecuted, and it’s worth noting that if the reforms proposed by the HFC and their Democratic Caucus allies were enacted, such unauthorized searches would be federal crimes with respect to FISA Section 702. What’s needed is reform that encompasses all such database searches at every federal agency and department.