Two decades later, all of that consensus has collapsed; indeed, divisions on both the purposes and methods of FISA have broken out both within and between the parties. And on March 15, key provisions of the law expire, with unforeseeable consequences both for national security and the cause of FISA reform itself.
FISA reform is a hot topic in part because of a recent report by the Justice Department inspector general that found serious deficiencies in the FBI’s handling of the case of Carter Page, an adviser to Donald Trump’s 2016 election campaign. The report found FBI officials misled, both intentionally and otherwise, judges responsible for approving warrants to surveil Mr. Page for suspected, but never confirmed, Russian connections. The FISA provision under which that flawed process occurred is not, however, one of the three set to expire soon. These are, rather, the ones added in the aftermath of 9/11 that have allowed the government to gather a wide array of phone records (but not the content of calls) at home and abroad. FISA court approval is required, but as critics ranging from the American Civil Liberties Union to Sen. Mike Lee (R-Utah) have argued, the mass collection of so much “metadata” raises privacy concerns. The NSA has recently suspended collection in part because the tangible benefits do not outweigh the costs, which ran to $100 million between 2015 and 2019, according to the New York Times.
House Democratic leaders had planned to adopt a bill deleting authority for that program, while adding civil liberties protections to the warrant application process that was abused against Mr. Page. However, Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) scuttled a hearing Wednesday when Rep. Zoe Lofgren (D-Calif.) announced she would seek even more sweeping changes to FISA.
Attorney General William P. Barr has told the Senate he favors a “clean” reauthorization of the existing statute, followed by administrative steps to correct abuses and more debate on further legislated reforms. Several Republicans in both the House and Senate, meanwhile, are rebelling, joining the call for wider reforms, and claiming the Page fiasco as their rationale. Mr. Trump himself, furious about the “deep state,” undercut Mr. Barr by hinting, via Twitter, that he sympathizes with those congressional Republicans.
The right answer is some combination of Mr. Nadler’s approach and Mr. Barr’s. If the NSA itself no longer finds bulk phone record collection useful, there is no need to keep authority for it on the books. Congress should make that change by March 15, reauthorize the rest of FISA, then make further legislative fixes with due deliberation. That approach might restore consensus. Grandstanding and tweets will not.