This editorial first appeared in the Fairbanks Daily News-Miner:
Shortly after Lisa Murkowski’s arrival as a new senator in Washington, D.C., she put a substantial amount of her time into an idea that ultimately didn’t get far — curbing the ability of federal agencies to spy on U.S. citizens with virtually no oversight.
A decade later, the topic is suddenly all the rage.
That must be simultaneously frustrating and gratifying to Alaska’s senior senator.
In July 2003, just eight months after becoming a senator, Murkowski publicly launched what became a multi-year, bipartisan effort to limit the relatively free hand that federal agents have when they believe they are dealing with foreign bad actors. Her legislation had a number of points, and the group of senators with whom she allied herself received a lot of attention. Several of their ideas received unanimous support in the U.S. Senate in 2005.
However, little of what she advocated actually became law because of opposition from President George W. Bush’s administration and the U.S. House leadership.
Some of the issues Murkowski was fighting back then were different than those of today. One of her primary goals was to require require the FBI to show “probable cause” of a crime to a secret federal foreign intelligence court in order to get a warrant to search library or business records. Existing law requires no explanation, merely a statement that the records are “relevant” to investigation of a foreign agent. The court has no choice but to grant the warrant, solely on the FBI’s say-so, with no independent review of the facts.
Other features of Murkowski’s 2003 legislation might be more relevant to today’s debates. Her original bill would have required agents to show “reasonable cause” to believe a person is acting for a foreign power before they can get a warrant to collect evidence in a foreign intelligence investigation. It also would have required agents to show specific facts related to a crime before obtaining court orders that allow them to capture dialing and routing information from telephones and other electronic devices.
Had more members of Congress joined Murkowski back then, perhaps we wouldn’t be so appalled today by what the government has been doing. Perhaps some of the surveillance might have been reined in by the federal court that is supposed to oversee these matters.
That’s hindsight, though. Today seems to be a highly opportune time for the senator to push some of those reforms again. Given the public outcry, perhaps more of her colleagues will not only listen but also act on the suggestions. Some of those suggestions have been sitting in front of them for 10 years.