Thursday, a bill was swiftly passed 80-16 in the Senate that would essentially reauthorize expired authorities under the Foreign Intelligence Surveillance Act (FISA) and impose new restrictions, but there were concerns about the protection of individual rights on both sides of the aisle.
Senator Rand Paul (R-KY), who is well known for his criticism of surveillance programs, argued that the use of FISA warrants should only ever be used on foreigners and that any use on Americans is unconstitutional. Sen. Paul stressed that the history of The Patriot Act has shown how easily this power can be abused.
“The Patriot Act allows a secret court, FISA, to grant generalized warrants to collect personal data from millions of Americans. The spies who run these surveillance programs then lied for years and years to us,” Paul said, speaking on former Director of National Intelligence James Clapper’s denial (under oath) that the government collects data on Americans.
“Most members of Congress had no idea that this was going on,” Paul continued. “They justify their actions by saying we’d been briefing the Elite Eight congressmen. Who are the Elite 8 and who made them elite?”
Sen. Paul explained that when the “Elite Eight” – made up of both majority and minority leaders in the Senate and the House, and majority and minority leaders of the Intelligence Committee in the Senate and House -were asked, said they have no recollection of ever being briefed on the matter.
“So this is a program where they were collecting the data on everybody’s phone calls. Everybody in America. And you would think there would have to be a debate and approval by Congress. But there were only eight people and those eight people seem to be confused that they’d approve the program as well.”
The Kentucky Republican brought up that the Fourth Amendment (which prohibits unconstitutional seizures and searches) was put in place to prevent FISA warrants. He explained that under the Patriot Act, the Fourth Amendment, which states you must prove probable cause to obtain a warrant, is lax and a more extensive standard that is unconstitutional.
“The Patriot Act, in the end, is not patriotic. The Patriot Act makes an unholy and unconstitutional exchange of liberty for a false sense of security. And I, for one, will oppose its reauthorization,” Paul stated.
Sen. Paul pointed out that if President Trump had not won, we may never have caught this abuse of power, and that a typical American citizen would never have been told they were under investigation.
“The deficiency of the FISA court and why it’s not constitutional is you don’t get a lawyer. You actually don’t even get told that you’ve been accused of a crime,” Paul said. “The only reason we know that President Trump’s campaign got caught up in this is he won because he won and now has the power to open and put sunlight on this.”
“If this had been an ordinary American caught up in this, you would never be told, you would never get a lawyer, and you would have been brought before this investigative body and allowed to search vast amounts of your private information without probable cause,” Paul continued. “I believe there’s no fixing the FISA court to make it constitutional for Americans. I believe the only solution is to exempt Americans from the FISA court.”
Sen. Paul argued those who would oppose this standard for investigating a political campaign would say going through a traditional federal court rather than a Foreign Intelligence Surveillance Court would be too difficult and time consuming, but that the standard lies in the Constitution.
“The constitution was meant to be rigorous. Our founding fathers understood that justice cannot be achieved in secret courts that don’t notify the accused, nor let the accused have legal representation. You can’t find justice where there is no adversarial process, where you don’t get a lawyer. I think it’s high time we quit letting fear overrun our constitutional duty. So today I offer an amendment that restores the Constitution for all Americans and forbids the secret FISA court from ever again meddling in our political process.”
Senator Paul’s amendment (Amendment SA 1586) was shut down 11-85.
The new H.R. 6172 USA FREEDOM Reauthorization Act of 2020 will now go to the House where it must be approved before hitting President Trump’s desk.