How Congress Learned to Live with Warrantless Surveillance (for Now)
How Congress Learned to Live with Warrantless Surveillance (for Now)
Wings of both parties hate FISA Section 702, but there’s no agreement on what to do about it.
LAST WEEK, CONGRESS PASSED, and soon President Joe Biden will sign, the annual National Defense Authorization Act. Within the bill’s 3,000 pages sits a four-month extension—through next April—of the government’s authority under Section 702 of the Foreign Intelligence Surveillance Act (FISA) to monitor the electronic communications of foreigners (and sometimes Americans) without a warrant.
The Senate narrowly defeated a point of order, raised by Rand Paul, contesting the extension’s presence in the bill. Thirty-four senators joined in Paul’s effort (six shy of what was needed to prevail). In political outlook, those siding with Paul ran the gamut, from Elizabeth Warren and Mazie Hirono on the left to Josh Hawley and J.D. Vance on the right. Earlier, more than fifty House members signed a letter denouncing the extension. Ilhan Omar and Barbara Lee (the only member of Congress to oppose the use of military force following the September 11, 2001, terrorist attacks) united with Matt Gaetz, Marjorie Taylor Greene, and Chip Roy.
The House had been primed to take up a pair of bills—one, from the Judiciary Committee, that would sharply restrict the Section 702 authority; another, from the Intelligence Committee, that would modestly check it—in a “queen of the hill” contest by which each bill gets a vote and the one with more yeas passes. But Speaker Mike Johnson was forced to dump this plan, and the House approved the NDAA with its “clean” (no reform) perpetuation of Section 702 by a tally of 310 to 118—with 78 Republicans voting nay.
Section 702 has riven the GOP. In a private debate on the later-abandoned standalone bills, Republican House members reportedly started swearing at each other. To simplify matters only slightly: An old guard remains devoted to national security and the memory of 9/11, while a rising MAGA faction fears the deep state more than foreign threats. The party of George W. Bush is pitted against the party of Donald J. Trump—except they are, for the time being, the same party.
How did we get here? And what’s in store for Section 702?
ENACTED in 1978, FISA WAS BORN of congressional probes, including the famous Church Committee hearings, into politically tinged surveillance by the FBI. (The bureau had notoriously snooped on anti-Vietnam War activists and Martin Luther King Jr.) Under FISA, the government must go before a closed tribunal, the Foreign Intelligence Surveillance Court (FISC), and obtain a surveillance warrant if it wants to monitor the communications of someone in the United States suspected of acting as an agent of a foreign power.
After the 9/11 attacks, the executive branch embarked on a secret program of foreign electronic surveillance. Congress eventually blessed a strain of this program in the FISA Amendments Act of 2008, which introduced the Section 702 authority. Section 702 broadly permits the government to engage in warrantless electronic surveillance of foreigners abroad. To that end, the government may compel American tech and telecom firms to turn over troves of emails, text messages, and other data. If, for example, a Pakistani citizen in Karachi emails a Honduran citizen in Tegucigalpa using Gmail, the government can compel Google to produce the correspondence.
Section 702 prohibits the government from “reverse targeting” someone in the United States. That is, an agency may not watch someone abroad who is in touch with someone in the United States as a way of watching the person here. In monitoring people abroad, though, the government inevitably captures messages with or about people here. Central to the current fight over Section 702 is the question of what can be done with this “incidental collection.”
The Fourth Amendment traditionally governs how information is collected, not how lawfully collected information is used. As the power to gather, store, organize, and search electronic data advances, this framing of the clause creates a quandary—a sense in which zero plus zero equals one. Consider: The government can lawfully collect data from abroad, where foreigners lack Fourth Amendment rights. But that data will contain messages between foreigners and Americans. And as far as the Fourth Amendment (historically understood) is concerned, the government may search those lawfully collected messages at will. Voilà—need for warrant gone.
The next thing to know is that the government does search its Section 702 data for Americans’ messages—and often. These are “U.S. person queries.” Not without reason, they are often called “backdoor searches.” The lawmakers arrayed against Section 702 in its present form want to limit or stop them.
BUT WHAT, EXACTLY, SHOULD BE DONE? Section 702 lends itself to dogmatic stances. Attack it, and you’re soft on terrorism—and on drug trafficking and child sexual abuse to boot. Defend it, and you want to create a police state. (These are real accusations.) Perhaps these certitudes serve a hidden purpose. The mind needs protection from the dizzying imponderables at play here. How do you weigh security against liberty? For that matter, how much surveillance buys how much protection? These are problems without solutions.
Everyone agrees on the need for reform, but no one knows the right balance. The most radical idea is to let Section 702 lapse altogether—a prospect that should be dismissed at a stroke. We are dealing, here, with an acutely potent tool. Information obtained under Section 702 hastened Ayman al-Zawahiri, the al Qaeda commander, to his destruction in a drone strike in Afghanistan last year. The Section 702 authority is used to thwart hackers, to disrupt fentanyl rings, and to counter attempts to recruit American assets. Something like two-thirds of the President’s Daily Brief consists of Section 702 intelligence. Many of the world’s electronic signals pass through the hands of American companies. To end Section 702 surveillance would be to squander a great national resource.
What about requiring a warrant from the FISC for each U.S. person query? The House Judiciary Committee bill went this route. But it’s an aggressive proposition. Many U.S. person queries are “defensive” or “victim” searches: their aim is to protect an American citizen or company from the designs of a foreign entity. Should the government really face bureaucratic hurdles in seeking to shield an American academic from the overtures of a covert foreign agent? Should it really suffer delay in trying to suss out whether someone here is working for—or being exploited by—a foreign terrorist group? (The Judiciary Committee bill contained an exception for emergencies, but assessing whether an emergency exists is sometimes the crucial, time-sensitive issue.)
So some measures could go too far. But others would not go far enough. Take barring U.S. person queries that search merely for evidence of a domestic crime. That makes sense: Why should a foreign-surveillance program be used for common crime-solving? And anyway, when a government watchdog panel pressed the FBI recently for “examples of U.S. person queries that had provided unique value in criminal investigations,” the FBI came up short. But this is small potatoes. The FBI almost never taps Section 702 data solely to find evidence of a crime. Indeed, to conduct a U.S. person query as part of an open criminal investigation unrelated to national security, the FBI must seek a warrant—something the agency has never done. Many of the FBI’s U.S. person queries are—by nature, given that the bureau is both a law enforcement agency and the country’s main counterintelligence unit—“dual purpose”; they seek at once to protect national security and to combat crime. Requiring a warrant when criminal investigation is one reason for a query would have a crippling effect. Requiring a warrant when it is the only reason would do next to nothing.
Another approach—one found in the House Intelligence Committee’s bill—begins with enshrining in law procedural reforms the FBI adopted, starting two years ago, on its own initiative. Some of these new rules are unsettling, in that they illustrate how slack the FBI was before. Only now must agents scouring FBI databases opt in to, rather than out of, searching Section 702 data. Only now must they supply a case-specific justification for such a search. Only now must they complete annual retraining in Section 702 protocols. And only now must they meet extra thresholds for U.S. person queries on sensitive figures, such as political candidates or journalists.
These changes are well and good—but do they suffice? A 2022 FISC order declassified earlier this year shines a light on what prompted the FBI’s effort to shape up. The FISC found that agents had conducted improper U.S. person queries on individuals arrested during the George Floyd protests, on individuals involved in the January 6th riot at the Capitol, and on thousands of donors to an unnamed congressional campaign. Overall, the FISC concluded, the FBI had allowed more than a quarter-million forbidden U.S. person queries to occur over the previous several years. Meanwhile, the total number of U.S. person queries grew to amazing proportions. In 2021, the FBI did more than 3 million of them.
The FBI has since cut that count by 94 percent. (The figure for 2022 is probably around 120,000.) But this was far from the FBI’s first FISA scandal, and many legislators doubt it will be the last. Trust us, the agency says—just as it has said before. The intelligence community still can’t even figure out how much incidental collection of Americans’ emails, calls, and texts is occurring.
LEFTWING DISTASTE FOR SECTION 702 is no mystery. The Democratic party has long had a large and raucous peace bloc. Progressives were voicing opposition to government surveillance soon after 9/11. The left’s abiding skepticism of the intelligence community stems from a deep-seated belief in civil rights, a disdain for even a whiff of racial or religious profiling, and (let’s face it) a penchant for blaming America first.
What needs explaining is the transformation, in regard to Section 702, among conservatives. Recall the FISA Amendments Act of 2008, the source of the Section 702 authority. That bill passed with unanimous Republican support in the Senate, and a lone Republican opponent in the House. Last week, by contrast, 16 Republicans joined Rand Paul’s assault on the Section 702 status quo in the Senate, and 78 Republicans voted against the NDAA in the House (albeit not just because of Section 702). This represents a spectacular collapse of Republican support for the national security state.
What happened? Actually, less than one might think. The Republican party never lost its isolationist wing, nor the fringe element that sees the government as a vector for, rather than a safeguard against, foreign power. The GOP’s contempt for the “national security blob” is new, but also old—a revival of pre-9/11 (even pre-Cold War) custom. And the party has never lacked for civil libertarians. Back in 2011—the crescendo of the War on Terror—former GOP representative Bob Barr was complaining about how “pervasive fear” had “become the currency of public policy in the wake of the [9/11] terrorist attacks.” Some on the right, in short, have always said “Don’t tread on me” to the government, even (or especially) when the government purports to protect them from foreign foes.
It might be said, moreover, that some Republicans are simply waking up to the FBI’s very real failures. After 9/11, a rightwing maxim held that government data collection is nothing to worry about. “Monitor use,” professor Richard Epstein, a self-professed libertarian, once wrote, “not collection.” It has now dawned on some conservatives that we need more monitoring of both. The FBI’s surveillance-warrant abuses bolster the point. The agency’s application to eavesdrop on Carter Page, a foreign-policy adviser to the Trump campaign during the 2016 election, was sloppy and error-ridden, and only one of many defective filings the FBI submitted to the FISC. (This, to be clear, was misuse not of the Section 702 authority, but of the original FISA domestic spying authority.)
But of course, the driving force here is Donald Trump himself. He has inflamed the Republican party’s ugliest instincts—populism, nativism, and the paranoid style—and contributed a lunatic ethic that is entirely his own. To the MAGA right, the Page imbroglio is proof that the “deep state” wants to destroy Trump and subjugate his supporters, and the FBI’s negligent U.S. person queries were not simple incompetence but portend black helicopters and the New World Order.
So it is no surprise when Republicans make wild claims about the Section 702 program. Rep. Jim Jordan, chair of the House Judiciary Committee, says that there are “204,000 reasons” why the GOP should “oppose FISA reauthorization in its current form.” That assertion glosses over much, including (1) that the “204,000” figure—an estimate of FBI U.S. person queries in 2022—likely contains substantial double-counting; (2) that many U.S. person queries are defensive or victim searches; (3) that many U.S. person queries don’t involve a person (as opposed to a company or other entity); and (4) that less than 2 percent of U.S. person queries turn up any hits. For another example, look at how Sen. Mike Lee over-rotates on this subject. He likes to compare Section 702 searches to the British general warrants that inspired the founders to adopt the Fourth Amendment. But U.S. person queries are hardly “general.” They cough up information on a U.S. person that exists in the Section 702 database—a set of communications to, from, or among foreign targets. To learn more about the guy on American soil, the FBI must seek either a criminal warrant or a surveillance warrant from the FISC.
Most Republicans may not be ready to smile for the camera with Code Pink. But a lot fewer of them still pepper discussion of national security with admonishments to remember 9/11. And that is an important shift—one whose ramifications are only just beginning to be seen.
THE FISC CAN REAUTHORIZE the Section 702 program for a year, an approval that remains in effect even if the underlying statute lapses. If the FISC were to issue a one-year reauthorization next April, at the end of the extension period in the NDAA, Section 702 could live on, without further legislative action, until April 2025. Many Republicans are furious about this.
But just because you’re paranoid doesn’t mean you’re wrong. The Republican turn against Section 702 is chiefly a facet of the conspiratorial wingnuttery that now flourishes in the party writ large. But it is also a legitimate display of righteous anger. The FBI was given immense power, and it wielded that power carelessly. If a far-left/far-right alliance ultimately succeeds in crippling the Section 702 program, the FBI will have helped bring that result on itself. And if a major terrorist attack should follow on from there, the blame will flow in all directions.
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