The Morning Dispatch: Does GOP Surveillance Skepticism Threaten FISA Renewal?

Happy Wednesday! To quote the moderators at last night’s Democratic debate: “Thank you, senator—your time is up—thank you, sen—we’re movin—thank you, senat—we have a number of—thank you, senator—alright, thank you—I want to give—ok, thank you—please shut the—thank you, senator.”

Quick Hits: Today’s Top Stories

• The CDC is warning that the U.S. should brace for the likelihood of China’s coronavirus beginning to spread through America, with one official saying yesterday that “It’s not so much of a question of if this will happen anymore, but rather more of a question of exactly when this will happen.” 

• Meanwhile, the Trump administration continues to insist the prognosis is good: “We have contained this,” National Economic Council Director Larry Kudlow said. “I won’t say airtight, but pretty close to airtight.”

• Olympics officials are warning that the 2020 summer games could be imperiled if the coronavirus is not brought under control in the next three months.

• Despite continued pleadings from Attorney General William Barr to stop weighing in on ongoing Department of Justice matters, President Trump resumed tweeting about Roger Stone’s criminal proceedings. Amy Jackson Berman, the judge presiding over Stone’s trial, issued a warning: “I need to state this clearly, that any attempt to invade the privacy of the jury is completely antithetical to our entire system of justice.”

• The Senate narrowly defeated Sen. Ben Sasse’s Born-Alive Abortion Survivors Protection Act for the second straight year yesterday. 56 senators supported the bill, including three Democrats, four short of the number required to overcome the Senate filibuster. 41 senators, all Democrats, were opposed. 

• Bob Iger, CEO of Disney since 2005, is stepping down from the top job at the House of Mouse. He will remain the company’s executive chairman until 2021.

The Coming Intra-GOP Debate on FISA

Remember FISA-gate? Throughout the multiyear run of Robert Mueller’s election-meddling investigation, congressional Republicans wore themselves out protesting that the Russia probe that resulted in Mueller’s appointment had begun under dubious circumstances: in particular, that the FBI had relied heavily on the histrionic Steele dossier to obtain a warrant to surveil Trump campaign official Carter Page. These protests were largely vindicated last year, when an internal investigation led by DoJ Inspector General Michael Horowitz found evidence of “serious performance failures” at the FBI, including, among other things, “17 significant errors or omissions” in the Page FISA application.

The FISA reform issue has been on the back burner for a few months, but it returns to the spotlight this week, as Congress takes up the question of whether to reauthorize key provisions of the Foreign Intelligence Service Act. The markup for the bill will take place today in the House Judiciary Committee, where Rep. Jim Jordan, a key Trump ally and longtime FISA-gate trumpeter, recently became the Republican ranking member. The markup will thus provide an interesting opportunity to see what reform concessions, if any, the GOP hopes to wring out of the reauthorization process. It’s a more fraught question than you might think.

During the Russia affair, the GOP largely spoke with one voice on FISA: President Trump’s campaign had been unfairly targeted. But this messaging unity obscured the deep ideological disagreements that still exist within the GOP over the proper balance between government surveillance and individual liberties when it comes to entities like the FISA court.

If you made a list of the Republicans who most strongly accused the FISA process of doing wrong by Donald Trump, Jordan and Rep. Devin Nunes would be right at the top. But Nunes and Jordan—at least in the past—have landed on opposite sides of fundamental legislative questions about FISA. Jordan is a civil libertarian and Freedom Caucuser who has repeatedly voted to limit the government’s FISA authority to conduct surveillance on U.S. citizens; Nunes is a surveillance hawk who sponsored the 2017 FISA reauthorization and routinely votes against such amendments.

In recent months, Nunes has telegraphed a newfound openness to reform, but has remained gauzy about what reforms he hopes to see. In a letter to Judiciary Chairman Jerry Nadler last week, Nunes and Rep. Doug Collins urged Nadler to “address FISA reforms” but proposed no concrete proposals.

Jordan, meanwhile, alongside other civil liberties Republicans like Sen. Mike Lee, has proposed a number of specific reforms, including placing a citizens’ advocate on the FISA court to ensure the privacy rights of citizens are not taken away without cause and requiring senior DOJ sign-off before a warrant can be granted to surveil a political campaign.

Another wrinkle: Attorney General Bill Barr seems to have made it his personal mission to smooth angry Republicans’ feelings about FISA. Axios reported last week that Barr urged President Trump last year to reauthorize the bill without any changes, citing national security concerns. “I trust you, Bill, but if it was up to me we’d get rid of the whole thing,” Trump reportedly responded.

Yesterday, at the Senate GOP’s weekly conference lunch, Barr made much the same pitch: suggesting that the necessary reforms to the FISA process could be taken care of in-house via executive action, without any need for amendments on the legislative side, and that legislative reforms would make the reauthorization harder.

When it’s come to FISA votes in the past, there have been many more Devin Nunes and Bill Barr types than Jim Jordan types in Congress. It will be interesting to see whether that’s changed since the Russia affair.

About Last Night

If you were hoping that a smaller Democratic debate stage would allow for a more substantive policy debate among the adults in the room, last night’s affair was a disappointment. After Bernie Sanders solidified his place as the definitive front runner for the nomination in the wake of his double-digit win in Nevada last Saturday, the six other candidates clearly believed this was their last opportunity to make their case before South Carolina on Saturday and the delegate tsunami on Tuesday when 14 states—including Texas and California—cast their ballots. 

This Morning Dispatcher watched the debate with a senior Obama campaign official from 2008 and 2012 who has donated to Sanders this cycle. As he put it, “nobody turned in an A performance.” From a broader perspective on the race, he added, “I am surprised that candidates haven’t been making the case for Democratic leadership up to this point,” he said, “compared to 2008 and 2012, it just hasn’t been very hopeful, it’s been very dark.” But at the end of the night, he’s still supporting Sanders because “he’s the only candidate who has both the grassroots campaign organization and endless small dollar money machine, which you need to win against Trump.”

In a debate that will be remembered for cross talk and raised voices, nothing about the fundamentals of the race appeared to change. 

Biden confirmed that South Carolina is a must-win state for him; he’s still leading in the polls, but there’s every indication that that lead has been shrinking as Sanders has built momentum over the last month. Elizabeth Warren continued her withering attacks on Michael Bloomberg, once again making the case for a progressive candidate and landing real blows against someone who has the media buying budget to potentially force Sanders into a brokered convention. Pete Buttigieg, on the other hand, focused his fire on the front runner, arguing that Sanders as the nominee would cost the Democratic party any chance to take back the Senate and keep the House. On policy, marijuana, gun violence, and coronavirus all got serious questions from the moderators, but the any distinctions between the candidates on those issues were once again overshadowed by the tenor of a race that has become less and less about policy specifics. 

And after two hours, the lights went down on what may have been the last primary debate of 2020.

Worth Your Time

• In recent weeks, we’ve spent a good amount of time covering the increasingly thorny diplomatic situation surrounding the coming global switch to 5G technology, with the accompanying fears that China is in a position not only to win the switch economically, but also to dramatically increase its own global surveillance powers by building out much of the world’s 5G infrastructure themselves. This week, Politico released a huge suite of 5G-related articles, many of which are fascinating. Of particular note is their global survey of different countries’ citizens, which illuminated stark differences between how Americans view tradeoffs between privacy and security and how much of the rest of the world views them. Only 21 percent of U.S. consumers said they would accept lower privacy standards in exchange for superfast internet speeds; in China, India, and Brazil, that number was north of 60 percent. Meanwhile, only seven percent of Americans polled said they believed private companies would be good stewards of their personal data—compared to 35 percent in China and 65 percent in India. Read up on these and more fascinating results from the survey here.

• Up top, we mentioned Sen. Sasse’s Born-Alive Abortion Survivors Protection Act. His speech on the Senate floor today in support of the bill is well worth watching. “The piece of legislation we’re voting on today … is not about abortion,” Sasse said. “The bill we’re voting on doesn’t change anyone’s access to abortion. It doesn’t have anything to do with Roe v. Wade. It is about babies who are already born.”

Presented Without Comment

Something Fun

A menu of cute, quirky, and downright bizarre animal videos for your Wednesday viewing pleasure:

Toeing the Company Line

• Jonah does a deep dive (we think he was wearing scuba gear as he wrote) on Edward Bellamy’s influential 1888 science fiction work, Looking Backward, that launched a 19th century nationalism movement and later is credited by some with influencing the New Deal

• When it comes to college, everyone focuses on access and affordability for students. But for many instructors, research is their primary mission. Frederick Hess and Brendal Bell look at how guidelines for federal funding have made the process more complicated than ever.

• Jonah welcomed Lachlan Markay and Asawin Suebsaeng to The Remnant to discuss their new book, Sinking in the Swamp, the state of Washington D.C. grifting, and so much more. Check it out here!

• In David’s latest French Press (🔒 available to members only), he dissects the Supreme Court’s decision to grant review in Fulton v. City of Philadelphia, and what it could mean for religious freedom. A brief excerpt is below; check out the full newsletter here!

In Fulton, the city took punitive action against Catholic Social Services (CSS) and refused to place any foster children with couples endorsed by CSS. The city took action because, as it stated in its initial petition to the Supreme Court, CSS “cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage.”

The issue was not that CSS prevented any gay couple from becoming foster parents. Gay families can work through different institutions, and—in fact, as the petition states—“not a single same-sex couple approached CSS about becoming a foster parent between its opening in 1917 and the start of this case in 2018.” 

So, if gay couples were fostering through different institutions, what caused the city to act? Allegedly it did so only after learning about CSS’s policy through a “newspaper article,” not through any formal complaint. The city then stopped placing children with any family CSS endorsed. According to the petitioners, “This means that even though no same-sex couples had asked to work with the Catholic Church, the foster families that actually chose to work with the Church cannot welcome new children into their homes at a time when Philadelphia has an admittedly ‘urgent’ need for more foster parents.” 

Let Us Know

To wrap up last night’s debate, moderator Gayle King asked each of the candidates to provide a personal motto. 

Because presidential candidates are all talking points all the time, it got weird—apparently Mike Bloomberg’s personal motto is “I’ve trained for this job for a long time and when I get it I’m going to do something rather than just talk about it.”

But presumably you, dear reader, are not running for president, so you can afford to be a bit more candid. Send us your words to live by! Here are a few to get you started.

• Declan: “Open your arms to change, but don’t let go of your values.” (Dalai Lama)

• Andrew: “Delete your old tweets.” (Andrew Egger)

• Steve: “Who are you to tell me to question authority?” (Steve Hayes)

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Sarah Isgur (@whignewtons), and Steve Hayes (@stephenfhayes).

Correction: Yesterday’s newsletter included a viral tweet from Joel Fischer showing Harvey Weinstein leaving a courthouse without a walker after having made use of one in recent months. It turns out, the video in that tweet was taken in 2018, not earlier this week.