Oversight

Congress Is Alarmingly Close to Handing Trump Dangerous Spying Powers

And Adam Schiff, of all people, is the one giving it to him

Adam Schiff. Photo: Thierry Monasse/Getty Images

For a few hours on Tuesday, it looked like the House of Representatives would finally vote to give Americans some much-needed online privacy protection against government abuse. The House seemed set to agree to a powerful reform of the Patriot Act: an amendment that would implement key privacy safeguards on our web browsing and search histories that would protect them from being accessed wholesale by the Trump administration.

But now, so-called #resistance hero Adam Schiff may have—once again—helped kill that reform.

Schiff, who saw his profile soar during the impeachment saga, has previously accused Trump of wanting to “make himself a monarch” and says that Trump thinks “presidents have a constitutional right to abuse their power.” In his viral speech during the impeachment hearings, Schiff said of the president, “You will not change him. You cannot constrain him. He is who he is.”

So it seems extra bizarre that Schiff — who is also chair of the powerful House Intelligence Committee — has continually moved to protect Trump’s ability to warrantlessly spy on Americans and even strengthen Trump’s surveillance powers.

The latest occurrence came on Tuesday night. Congress has been embroiled in debate over the potential renewal of three controversial provisions of the Patriot Act, the post-9/11 spying bill that has been harshly criticized by civil liberties advocates for almost two decades. At issue in Congress is the fact that Section 215 of the Patriot Act (the provision once secretly reinterpreted by the FISA court to authorize the NSA’s mass phone surveillance program) allows the Trump administration to gather the internet browsing and search histories of Americans without a warrant.

Sen. Ron Wyden had proposed an amendment that would require federal authorities to get a probable cause warrant before ever accessing this data. It seemed like a popular no-brainer: Web browsing and search history is some of the most sensitive content online, and internet privacy has never been a bigger concern to the public.

But in a dramatic vote two weeks ago, the Senate roll call on Wyden’s amendment fell just one vote short of the 60-member threshold from passing. With two Democratic caucus members — Bernie Sanders and Patty Murray — missing the vote, the final tally was 59 for and 37 against.

The outrage was swift. Even in the Covid-saturated media environment, dozens of news outlets covered the controversy, and the reaction from constituents across the country then came pouring in. Civil liberties organizations immediately mobilized their supporters to contact members of the House, which still must vote on the final bill before it goes to Trump’s desk for a signature.

The pressure worked. Later that same day, Senators voted to pass another amendment that has the potential to reform the secretive FISA court in a significant way. And the House’s privacy advocates felt emboldened to push House leadership to hold a vote on the Wyden amendment during its debate of the Patriot Act bill this week.

At the behest of Speaker Nancy Pelosi, a bipartisan team of House representatives — led by Democratic Rep. Zoe Lofgren and Republican Rep. Warren Davidson — negotiated for three days with Schiff on the exact language of the amendment. Lofgren and Davidson wanted an up and down vote on Wyden’s version that failed in the Senate by one vote, but Schiff reportedly resisted. The sides reached a compromise late Tuesday afternoon.

Schiff pushed for a change to the amendment so that warrant protections would only cover “U.S. persons,” a definition that would exclude millions of undocumented immigrants in the United States, including the thousands of DACA recipients, who are at particular risk of surveillance under the Trump administration. Even with the weakened language, Wyden supported the bill, while emphasizing in a statement that the bill’s language meant that if there was any possibility of Trump collecting U.S. persons’ data, then the administration had to get a warrant.

This is far from the first time Schiff has attempted to allow Trump to expand powerful surveillance.

But Schiff went to work to immediately undermine the compromise. He made a statement to the New York Times, indicating he interpreted the bill much more narrowly than Wyden, potentially rendering it almost meaningless. Because the FISA court often interprets these spying bills in secret and relies on “congressional intent” when wording is vague, Wyden, Congress’ leading privacy hawk, pulled his support.

Civil liberties groups like Demand Progress are now recommending a “no” vote on both the amendment and the Patriot Act reauthorization. David Segal, executive director of Demand Progress, told me, “Schiff cares more about protecting the NSA than protecting Dreamers and are otherwise trying to carve loopholes into [the Wyden amendment] big enough to slip the whole surveillance state through.”

This is far from the first time Schiff has attempted to allow Trump to retain or even expand powerful surveillance or prosecutorial capabilities while he’s been in office. Two years ago, Schiff repeatedly opposed other privacy-focused amendments supported by many Democrats that would have reformed the FISA Amendments Act, another statute relied upon by the FBI and NSA for mass surveillance. As Fight for the Future’s Evan Greer said at the time, “It’s good to know that House Democrats like Adam Schiff are ‘resisting’ Trump by voting to ensure that he has limitless authority to conduct mass warrantless surveillance.”

Last year, Schiff inserted an amendment into a spending bill that gave the Trump administration terrifying powers to prosecute reporters who publish classified information, even if it exposes illegal conduct. It was roundly condemned by press freedom groups.

As of this moment, it’s unclear what will happen with the Patriot Act, as the debate has descended into chaos. Trump has thrown another wrench into the gears after he implored Republicans to vote down the Patriot Act extension because of his ongoing obsession with the Obama administration. Attorney General William Barr is furious at the Senate for adding reforms to the FISA court and wants Trump to veto it. Late Wednesday, the Democratic progressive caucus urged a “no” vote as well, after the House announced that it wouldn’t bring the Lofgren amendment or the Wyden amendment to the floor.

Though it looked for a moment like Pelosi and Democratic leadership would force the entire House vote on the full Patriot Act reauthorization without any reform on Wednesday night, they abruptly pulled the bill — likely because they realized they didn’t have the votes. Another vote may come as soon as later this week.

All this means there is still a historic opportunity to protect the privacy of hundreds of millions of people. It would be a tragic shame if it went to waste in the name of protecting Donald Trump’s power to spy on us. If the House ultimately fails to vote on a categorical bar on warrantless searches of our web browsing and search histories, Adam Schiff and Democratic leadership should shoulder much of the blame.

Trevor Timm is the executive director of Freedom of the Press Foundation. His writing has appeared the New York Times, the Guardian, and the Intercept.

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