FISA: Reform

The Clock is Ticking on the 215 Sunset---And Why That Matters

By Benjamin Wittes
Tuesday, April 7, 2015, 5:27 PM

Tick. Tick. Tick.

That's the sound of time slipping away before the June 1 sunset of the Patriot Act 215 provision. We're now within two months of the sunset. Congress does not seem to be bestirring itself to pass anything---the USA Freedom Act in one form or another---so we need to consider the possibility that May will come and go and June will see the law will actually expire. This would be a consequential failure on the part of the legislature, though not for the reasons many people seem to assume.

Many commentators assume that the big enchilada here is the 215 program itself. There's been a lot written, for example, about whether the program might continue under a kind of grandfathering language in the statute. There's also been a lot of discussion about what contingency plans the administration may have if the statute is allowed to lapse. These are interesting questions, but they seem to me to miss the broader significance of a legislative failure to act before the sunset. The 215 program itself, after all, is not that important. Even if one accepts the intelligence community's view of its efficacy---and many people do not accept it---it is a relatively narrow program used in a limited group of cases and involving a small number of queries annually.

The bigger significance of a failure to act, rather, would be threefold:

First, it would constitute a vivid demonstration that Congress is not up to the task of signals intelligence reform. This would be a significant change. Since Congress first passed FISA in 1978, it has returned to the statute on any number of occasions to tinker with it in response to changed circumstances and shifting technologies. These changes have been critical to keeping the statute relevant, to keeping its protections remotely commensurate with intelligence practice and capacities, and to keeping its authorizations remotely commensurate with the behavior of intelligence targets. These changes have always been bipartisan. They have taken place irrespective of which party controls the White House and which party controls Congress. And while the larger gridlock affecting Washington has eroded that bipartisanship, it hasn't eliminated it, nor has it left Congress incapable of doing its job in this area. FISA has been a matter on which the two parties have managed to work together pretty effectively over a very long period of time. It's an area in which Congress has always managed to do its job.

Now, however, we finally seem to be watching gridlock overwhelm the oasis that was FISA. Last year's compromise legislation, which died in the Senate, was certainly imperfect. There was a fair bit in it that I was not comfortable with, and that is no doubt true of the civil libertarians, intelligence folks, industry people, and administration lawyers who all worked it. But it was a bill the intelligence community, major civil liberties groups, the administration, and industry could all ultimately hold their noses and support. And that was a real accomplishment. Yet even with this degree of consensus, Congress could not move---nor could it pass any legislation that had a narrower constituency. That paralysis sends a dangerous message that the legislature will no longer act as the custodian of a piece of legislation that requires regular updating---and not merely because of sunsets but also because of rapidly changing technology---to stay viable.

Second, legislative inaction would leave signals intelligence reform entirely in the hands of the Executive Branch and the courts. The Obama administration has leaned pretty far forward with respect to internal reforms. It has mandated all sorts of new transparency. It has declassified documents and programs. It has put out PPD-28, a unique document in the history of intelligence. It has conducted a substantial process of implementing that order. And the FISA court likewise has shown a lot of leg.

The trouble is that none of this new practice is codified in law. While much of it is hugely consequential, a skeptic might reasonably note that the next administration could simply flip a switch and turn a lot of it off again. A presidential order can be rescinded, after all. New processes can be revised, or revoked. I actually don't think that would happen, but the USA Freedom Act would codify a lot of reforms, particularly on the transparency side. And failing to enact it---or some version of it---would make it far harder to answer the question of what has really changed in the intelligence community because of all those Snowden disclosures. It would leave the Glenn Greenwalds of the world with the argument that the U.S. political system is not capable of meaningful, lasting legal reform. And while they would be grossly simplistic in making that assessment, their argument would not be wholly without merit.

Third and most important, the failure would have big implications for Section 702, which is slated to sunset in 2017. Unlike Section 215, 702 is not a small program. It is a huge, bread-and-butter collection program. But just like 215, there's a date certain which constitutes puff-of-smoke time for 702. If Congress demonstrates itself incapable of passing the USA Freedom Act, given the broad swath of interests that have signed onto it, what does that mean for its ability to maintain and adjust programs on which big things actually depend every day? Letting 215 expire by default, rather than by decision, will send a strong message that the fabric of U.S. intelligence law is not stable and may be altered as a consequence of paralysis and gridlock, rather than as a consequence of deliberation and political leadership.