New York Congressman Jerry Nadler, the ranking Democrat on the House Judiciary Committee and one of the chamber’s most ardent defenders of civil liberties, went to the floor of the House on Thursday with a simple request: that members reject the draconian FISA Amendments and Reauthorization Act of 2017.
Nader’s argument against this wrongheaded extension of the Foreign Intelligence Surveillance Act was pointed and powerful: “When we came to Congress, each of us took an oath to defend and protect the Constitution of the United States. I ask that each of my colleagues honor that oath today — and that we work together to defeat this bill, and to bring the right set of reforms to the floor without delay.”
He explained that the legislation, which had the backing of the White House and Republican leaders in the House, proposed to reauthorize the federal government’s surveillance powers without adequate safeguards for the privacy rights of Americans. Noting that the legislation, which is supposed to protect against terror threats, “allows the FBI unfettered access to (federal database) information, for purely domestic cases, without a warrant,” Nader asked: “What does that mean, in the era of Jeff Sessions and Donald Trump?”
He answered: “It means that absolutely nothing stops the Department of Justice from trolling the database for evidence that you use marijuana, or failed to pay your taxes, or may be in the country unlawfully, or possess a firearm that you should not have.”
Nadler was not alone in his assessment. “The government will use this bill to continue warrantless intrusions into Americans’ private emails, text messages, and other communications,” warned Neema Singh Guliani, the policy counsel with the American Civil Liberties Union. "No president should have this power.”
Those concerns were sufficient to convince a bipartisan coalition of 164 House members to oppose the assault on privacy rights. Wisconsin U.S. Reps. Mark Pocan, D-town of Vermont, and Gwen Moore, D-Milwaukee, joined Nadler on the list of 119 Democrats who voted “no.”
They were joined by 45 Republicans, including U.S Reps. James Sensenbrenner, R-Menomonee Falls, and Sean Duffy, R-Wausau. Many, though not all, of the Republican dissenters were libertarian-leaning mavericks who recognized the threat that their respected colleague from New York was warning about. Others were merely responding to the concerns expressed by constituents about the dismantling of civil liberties by an increasingly intrusive federal government.
The combination of Democratic and Republican votes against the FISA reauthorization scheme added up to 164 “no” votes.
On the other side were 256 “yes” votes. The anti-privacy votes came from 191 Republicans — including House Speaker Paul Ryan of Janesville, Glenn Grothman of Glenbeulah and Mike Gallagher of Green Bay. That was not enough to approve the FISA bill. Unfortunately, 65 Democrats — including Minority Leader Nancy Pelosi, D-Calif., and Minority Whip Steny Hoyer, D-Md. — voted with the Republicans.
If the full Democratic caucus had merely respected Nadler’s warning that the bill they were considering “pretends at reform while codifying some of the worst practices of the intelligence community,” the measure could have been beaten. Add 65 Democratic votes to the 164 “no” votes and you get 229 — a clear majority for civil liberties.
If nine abstaining Democrats — including Ron Kind, D-La Crosse — had voted “no,” the vote to affirm privacy rights could have gone as high as 238.
Defeating the FISA Amendments and Reauthorization Act of 2017 would have been a dramatic victory for the resistance not just to President Trump and Attorney General Sessions but to the authoritarian impulses of those who already have too much access to too much of our personal information. It would have also signaled that Democrats have achieved clarity, and unity, on some basic values such as respect for the Constitution, privacy rights, and civil liberties.
Noting that outspoken conservatives voted with progressive Democrats to block the FISA bill, Congressman Ro Khanna trenchantly framed the issue: “When (Michigan Republican Justin Amash and North Carolina Republican Mark Meadows, the chair of the House Freedom Caucus) vote against surveillance, but scores of Democrats vote for it, then it's fair to ask what does our party stand for? If we can’t be unified around the principle of civil liberties, then what is the soul of our party?”
The fight over whether to protect civil liberties now moves to the Senate, where Constitution-inspired Democrats and Republicans will continue the struggle.
Jerry Nadler’s message to the House holds true for the whole of the Congress: “Our right to privacy does not begin when the Department of Justice has a fully formed criminal case against us. Nor does it begin when prosecutors enter our emails and text messages into evidence against us in court. The Constitution guarantees far more than this. Our right to privacy protects us when the government first makes its decision to search our private communications for information it might find useful.”
"(This measure) falls well short of this basic guarantee,” concluded Nadler. “We therefore cannot — we must not — support this bill."