The Legislative Dynamics of FISA Reform

Raffaela's piece this morning offers a granular breakdown of what the major FISA reform proposals would do across a number of different axes. In reading both it and the bills it describes, I had four brief higher-altitude thoughts about the legislative dynamics at work here. First, there are some broad areas of legislative agreement. The major bills, the SSCI bill and the Leahy-Sensenbrenner bill, which together represent most of the major civil libertarian players and intelligence community backers, would both make the FISA process more adversarial; they would both increase the amount of information the executive branch is legally obliged to disclose publicly and to Congress; they would both leave the appointment process for the FISA courts alone; and they would both enhance oversight. They would do these things in different ways and to very different degrees, but if one were to put aside the big-ticket substantive question of whether the government should be collecting metadata in bulk in the first instance, there's actually a lot of conceptual common ground on the littler stuff that could lead to an important piece of legislation. Second, the trouble is that this common ground emphatically does not extend to the big-ticket substantive question---that is, the basic purpose of legislation here. On this, the major bills substantially part company. The Leahy-Sensenbrenner bill is designed to end bulk metadata collection and to clarify that the business records provision of the FISA covers business records that are individually material to a national security investigation. The SSCI bill, conversely, is designed to authorize and legitimize bulk collection more clearly than does current law while simultaneously imposing some new restrictions in statute that largely already appear in the court orders that issue under current Section 215. So there's a basic legislative choice to make here, one on which members are deeply divided and about which both sides feel passionately. One this point, one side is simply going to have to lose. Third, this fact puts a premium on the default rules, which in the short term favor NSA, the administration, and those in Congress who support broader collection authorities. It is easy to imagine no majority emerging for any approach to legislation---thus guaranteeing no bill. Civil libertarians of both the right and left may have enough power in one or more house of Congress to stymie legislation like the SSCI bill. And I would be very surprised if Congress were able to pass legislation like Leahy-Sensenbrenner over the objections of the overwhelming majority of the Senate Intelligence Committee. The result, despite fairly broad conceptual agreement on a wide array of matters, may be that Congress is not able to pass anything. In the short term, this would mean no new constraints on collection, no enhanced oversight or increased transparency, and no added adversarial process in the FISC---which would seem like a big win for those who believe in the current system. The trouble for such advocates of stronger collection authorities is that, fourth, in the long run, the default rules do not favor the sort of robust collection powers that the short-term default rules would keep in place. For one thing, the administration has at least some reason to worry that its reading of Section 215 will fare less well in non-FISA court challenges than it has before the FISC, so there's some litigation risk associated with the status quo. More worrying is that the current Patriot Act 215 authorities sunset in 2015. So while the short-term consequences of having no bill may be less constraint on collection, the medium-term consequences of having no legislation will be that authorities the administration regards as critical will disappear. This combination of broad agreement over lots of important little stuff, deep disagreement over the big stuff, and default rules that favor different sides at different times sets up a fascinating and complicated legislative dynamic in which both sides have many cards to play but also big potential downside risk to not reaching some kind of deal. They thus may favor structurally some sort of compromise, though the ultimate choice between having a 215 program and not having a 215 program is---as I said---pretty binary.