Pete Riehm
The FISA debate misses the point again
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By Pete Riehm
April 16, 2024

After acutely contentious debate and tumultuous legislative wrangling, the House reauthorized the Foreign Intelligence Surveillance Act (FISA) for another two years. Balancing the vital concepts of privacy versus security, it’s a complicated issue to be sure, but even more fascinating and frustrating is the opposition and support were both bipartisan. Democrats and Republicans were relatively evenly split making odd alliances, so we could not draw any simple conclusions of wrong and right or bad guys versus good guys. One could make the magnanimous point that all were good guys because both sides had arguably principled positions, but Americans will more likely conclude all are bad guys because again Congress has avoided the real underlying issue – accountability for laws already abused and broken.

The dispute was the perennial debate on how best to balance the privacy of Americans with the need for security for America. Simply put, Americans want law enforcement to aggressively investigate and track criminals and terrorists, and therefore will grant them extraordinary powers, but Americans will not tolerate the abuse or haphazard application of those powers against American citizens, particularly if it’s political in nature – that’s a forbidden violation of Americans rights. Sadly, we have seen more than a few abuses of this far-reaching and frightening power.

FISA was first enacted in 1978 to allow American intelligence agencies to surveil foreigners outside the U.S. without a warrant, but it strictly excluded Americans. In 2008, those restrictions were relaxed to allow monitoring of Americans without a warrant if they were communicating with a foreigner under surveillance outside the U.S. In our increasingly dangerous terror prone world, such changes seemed justified and necessary. Like the Patriot Act after 9/11, Americans wanted protection, so we have repeatedly loosened the legal leash for intelligence and law enforcement agencies to protect us. A tenuous but tolerable bargain as long as there is confidence in our institutions, but those entrusted have squandered that trust.

Americans are still aghast and incensed that the FBI fraudulently obtained warrants from the Foreign Intelligence Surveillance Court (FISC) to spy on the Trump campaign and then the Trump Administration. In 2021, Congressman Jim Jordan (OH-R) stunned Americans when he revealed that the FBI had used FISC to improperly query U.S. citizens’ data 278,000 times! The bureau admitted to wrongly surveilling both Black Lives Matter and January 6th protesters. Further exacerbating the concern about such abuses, we learned the FBI was investigating concerned parents at school board meetings and Orthodox Catholics attending Latin Mass!

The balance of privacy and security is clearly out of whack. Perhaps the good news is the FISA debate was intensely controversial which hopefully means Congress recognizes there’s a huge problem. Leading the charge to protect privacy, Congressman Andy Biggs (AZ-R) offered an amendment to the FISA Reauthorization that included a requirement for warrants to obtain information on Americans. Considering the recent train of abuses by the FBI and Department of Justice (DOJ), it seems a necessary and prudent measure to rein in these rogue agencies.

Opponents of the amendment concerned about security argue that it will severely hamper efforts to protect Americans from terrorists. They insist surveilling Americans already requires a warrant and the amendment imposes a requirement for a second warrant just to view already legally obtained information. They point to data obtained from a foreign terrorist that includes information on perhaps cooperating Americans is already covered and often requires speed in defeating threats, and further it might require multiple additional warrants that will hamstring vital investigations.

Debating the balance of privacy and security is an important and necessary debate. Transcending the media hyperbole, a sober assessment shows both sides have legitimate points, so an intense critical debate is healthy and will hopefully arrive at an acceptable viable balance. However, this debate and the ensuing political theater still misses the point.

Any law good or bad is only as effective as those administering or enforcing it. The FISA Reauthorization passed by the House has 56 reforms including criminal penalties aimed at precluding the recent abuses, arguable a good effort. However, Americans won’t be satisfied with that or the failed amendment because the bad actors that have exploited those laws have never been held accountable and are still there!

Americans know that all the bad actors that weaponized government power for partisan purposes or abused it to spy on average Americans are still in those agencies or enjoying lucrative consulting gigs on cable news. Congress can debate and tweak these laws ad nauseum, but the manipulators will only find new ways to circumvent the new laws. We must constantly update computer virus protections because the hackers eventually defeat any improvements, so the only way to get real protection is to eliminate the bad actors.

No matter how good a law is it will be ineffective or abused if evil men are allowed to manipulate it, so we must demand the highest integrity of our officials and vigorously purge those who lack integrity. The domestic threat from these nefarious actors hiding in the shadows of our government is tipping the balance toward privacy. Americans are wondering whether the greater risk is from foreign terrorists or our federal government.

That is why Americans remain exasperated with the FISA debate as just noise, because Congress has not used its Constitutional oversight power to root out the bad actors and hold them accountable to the law. It’s a festering, simmering cancer that is devouring the credibility of the federal government. Without the just application of the law and attainment of justice, there is no reason for Americans to trust federal agencies or believe Congress.

The federal government has lost the trust of the American people. Only serving justice and truth will restore American confidence in the federal government. Until then, these debates in Congress miss the point and average Americans tire of the excuses and deflections.

“Moreover, look for able men from all the people, men who fear God, who are trustworthy and hate a bribe, and place such men over the people as chiefs of thousands, of hundreds, of fifties, and of tens” (Exodus 18:21).

Pete Riehm is a conservative activist and columnist in south Alabama. Email him at peteriehm@bellsouth.net or read all his columns at http://www.renewamerica.com/.

© Pete Riehm

 

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Pete Riehm

Born to German immigrants, Pete Riehm grew up in Texas as a first generation American. Working his way through college, he enlisted in the U.S. Naval Reserve. After graduating from the University of Houston, Pete was commissioned into the United States Navy through Officer Candidate School in Newport, Rhode Island. He also earned a Master's Degree in National Security from the U.S. Army Command and General Staff College in Fort Leavenworth, Kansas... (more)

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