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Thoughts on the FISA Extension


The Senate recently voted 65-34 to approve an extension of FISA without the Amash-Lufrgen amendment, which would have required warrants to look through data collected from Americans as the result of spying on people abroad but was defeated in the House. A minority of Democrats, including Nancy Pelosi, voted to kill the amendment. Some notes:

  • The votes to kill Amash-Lufgren were bad, and the votes to pass the unamended bill were bad. These votes coming from Democrats in leadership positions and/or safe seats are especially bad. They deserve criticism.
  • There is some cautious optimism to be taken from the fact that these bills faced a lot more opposition than they did in 2012 in either the House or the Senate. Younger Democrats were much more likely to vote for the pro-privacy amendments and against the bill. Republican “libertarians” actually voted libertarian for once.
  • Every Senate Dem with plausible presidential aspirations — Gillibrand, Sanders, Booker, Harris, Brown — voted no on both cloture and the merits, which is a good sign. It’s possible that any one of these people could switch back if they got the nomination like Obama did, but I doubt it. This part of a much more systematic shift to the left. Gillibrand’s instincts in this have been unerring since Trump was elected, and Brown and Bernie were already nays in 2012. And one reason I think Booker is underrated by lefties is that when evaluating presidential candidates I think criminal justice issues (where Booker has been outstanding) are much more important than education policy.
  • There’s an argument that the Democrats who voted for the bill and/or against A-L are therefore arguing in bad faith when they denounce Trump as an authoritarian. A lot of people seem to be impressed with this argument, but it’s transparently illogical. The bill doesn’t “give” the president new powers per se; the government has the technical ability to conduct wiretaps on anyone. A-L would have just placed additional legal restraints on the use of this power. But the whole point about authoritarians is that they don’t consider themselves bound by legal restrains and norms. The United States Constitution explicitly prohibits Trump’s self-enrichment from the office, which hasn’t given him the slightest pause. He has openly obstructed the investigation into his campaign. And if you want to collect information for nefarious purposes — if you’re not trying to build a case to take to court but looking for dirt — you don’t need to apply for a warrant whether it’s required or not. The votes to extend FISA unamended are bad, but Trump’s uniquely bad qualities are neither here nor there.
  • The same goes for attempted to quoques about Russian interference. The hacks that helped elect Trump were highly illegal, which oddly enough didn’t stop them from happening, or the Trump campaign from calling for them ex ante and celebrating and hyping them ex post, so what formal legal restraints are in place are beside the point. I will also observe that there’s no little tension in posing as a major advocate of privacy, while not only being¯\_(ツ)_/¯ about the hacks themselves but enthusiastically digging through them to find the most threadbare pretext to make vast overblown claims about the perfidy of the Democrat Party is a different story.  (To be clear, I agree that there can’t be a blanket prohibition on publishing information obtained from illegal hacks; if they show genuine misconduct from important officials this is news. Hyping inane trivia that can only seem like a story because it was revealed by illegal hacking is a different story. There should be a much higher threshold for using information from privacy-invading illegal hacks, but perversely the illegal source made non-stories easier to pass off as stories.)

So definitely criticize the Democrats who voted for the FISA extension and against A-L. But Trump has nothing to do it. The bill does more to empower presidents who are committed to following legal procedures than those who don’t care.

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