Andrew McCarthy: Coronavirus takes precedence for Congress but FISA awaits action

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The need to gear up Washington’s response to the coronavirus pandemic is obviously, and appropriately, squeezing out the time available to deal with other issues. So it is with FISA (the Foreign Intelligence Surveillance Act), specifically, with the three Patriot Act provisions that were the subject of my column this past weekend — roving wiretaps, lone-wolf surveillance, and business records production.

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For the moment, these investigative tools have lapsed, although the shutdown should only last a few days.

Late last week, with the March 15 sunset looming, negotiations among Democrats, divided Republicans, and the Trump Justice Department yielded compromise legislation in the House that would have extended the sunsets to December 2023. The bill prohibited use of the business records provision to conduct bulk-collection of telephone metadata (a program that, as a practical matter, has long been shut down because it was never justified by the government and is unworkable in any event under current law).

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Beyond that, it prescribed new measures to guard against FISA abuse — not least, attorney general sign-off on any intelligence surveillance of federal elected officials and candidates, enhanced penalties for lying to the FISA court, a clarification of the court’s contempt power, clarifications of the government’s obligation to disclose exculpatory evidence, and an additional layer of legal advisers for the court (even beyond the amicus curiae already provided to by law).

Rich and I discussed these proposed changes on The McCarthy Report podcast last week. Some of them are real improvements. Some are not ... but they are worth accepting for the greater good of preserving the government’s anti-terrorism capabilities.

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