Attorney General Bill Barr appears on a collision course with President Donald Trump over reforming the Foreign Intelligence Surveillance Act court. Civil libertarians like Sen Rand Paul (R., Tenn.) are pushing for reforms in light of the abuses uncovered from the Russian investigation. Despite my respect and friendship for Barr, he is wrong in my view and the President should push forward with the reforms. When President Trump declared “Now is our chance to fix it,” he is absolutely correct.
Sen. Paul has indicated that the President is onboard with reforms, tweeing “Good talk with @realdonaldTrump yesterday and I’m pleased he is urging FISA reform NOW – and not a reauthorization of the current Patriot Act.” I have long respected Sen. Paul’s fight for such reforms and I have been a long critic of FISA since I first went into that “court” as a young intern with the National Security Agency in the Reagan Administration. Such legislative reforms are even more pressing given the FISA court’s baffling decision to appoint a defender of the abusive use of the court as its “reformer.”
Paul is pushing for limits on how the court can be used against Americans. They include modest limitations that would still allow robust surveillance, including mandatory and random audits of FISA applications by the Inspector General, ending the Call Detail Records program, mandatory disclosure of exculpatory evidence in FISA applications, and appointing amici in all “sensitive investigative matters” with access to all FISA court documents. This includes dealing directly and honestly with the status of the controversial records program under Section 215, that gathers metadata on domestic text messages and phone calls.
I am leery of efforts to again kick this can down the road with temporary extensions of existing authority. The FISA court was designed to circumvent the Fourth Amendment’s requirement of probable cause of a crime — using the term but making it little more than probable cause to suspect someone is working for a foreign power. That is why applications for surveillance are uniformly approved. The court has little real basis to deny such applications.