The House has passed a “clean” continuing resolution keeping the government in business until January 19. The CR authorizes the continuation of the Foreign Intelligence Surveillance Act Section 702 program until then but, if this week’s activities are any clue, the program is going to either die or it will have to be severely rewritten to gain support in the House and maybe even in the Senate.
Section 702 authorizes the federal government, with some statutory restrictions, to intercept electronic communications inside the United States of individuals who are not U.S. persons (that is, U.S. citizens or legal residents). According to the law, the government must reasonably believe that the targets are outside the country at the time of collection.
Section 702 differs in important ways from traditional collection under the 1978 Foreign Intelligence Surveillance Act (FISA). For the government to obtain an order to intercept domestic communications under FISA, it must demonstrate probable cause that the target of the surveillance is a foreign power or an agent of a foreign power, and that each of the facilities to be placed under surveillance is likely to be used by the target. The statute generally defines “foreign power” as a foreign government, a foreign entity or political organization, or a group engaged in terrorism. For a U.S. person to be an agent of a foreign power, some level of suspected involvement in criminal activity is necessary.
Section 702, in contrast, is not subject to the same Fourth Amendment constraints, primarily because the statute targets foreigners overseas. The law, for instance, does not require the government to obtain an order specifying the person or place that it plans to target. Instead, the decision is left to the attorney general and the DNI, so long as the target is reasonably believed to be a non–U.S. person and outside the United States and collection meets the certification requirements. Specifically, the government must certify that targeting and minimization procedures—which are designed to minimize the acquisition and retention and prohibit the dissemination of information about U.S. persons that is not publicly available—meet the statutory requirements and that “a significant purpose” of the acquisition is to gather foreign intelligence. The Foreign Intelligence Surveillance Court (FISC) then determines whether the procedures comply with the law.
No one is disputing the ability of the US government to place surveillance on foreigners for basically any reason. Where the rub comes is when US citizens are talking to foreigners or US citizens are being discussed by foreigners. The proponents of Section 702 can talk about FISA courts and “unmasking” procedure all the want but any court that approves 99.97% of warrant applications is a rubber stamp and anytime the UN ambassador can order the “unmasking” of several hundred American citizens, something is very, very wrong.
Until last spring, Section 702 reauthorization was predicted to sail through the Congress. Even though we knew that the Obama administration used Section 702 to spy on Members of Congress during the Iran nuclear sell-out, it wasn’t until the revelations of widespread apparent abuse of the law by the Obama White House and the leaking of classified conversations by the #Resistance that it began to gel, on the left and right, the degree to which this law was a danger to civil liberties. So instead of a long term reauthorization, Section 702 got a three-week reprieve…barely.
There isn’t any chance that a long-term FISA reauthorization has the support of the overall conference,” Rep. Mark Meadows (R-N.C.), the chairman of the House Freedom Caucus, said Wednesday, referring to Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008, which gives the National Security Agency the authority to collect emails and other communications of overseas foreign targets from U.S. companies.
Lawmakers are expected to approve a short-term extension of the surveillance authority in its current form, keeping it in place until Jan. 19 — that being the same date the short-term budget extension pending before Congress this week is set to expire.
Absent congressional action, the Section 702 program will expire at the end of the year — a worst-case scenario for the intelligence community, which has ranked an extension of the program as its highest legislative priority for 2017. But Republican members of the Freedom Caucus, as well as members of the House Judiciary Committee, have insisted that Congress place more-significant restrictions than GOP leaders were planning to impose on the FBI’s ability to access information about Americans who may have been in touch with foreign targets.
Party leaders had rallied around an effort from House Intelligence Committee Chairman Devin Nunes (R-Calif.) to pass a long-term extension of the Section 702 program that would have incorporated a requirement that the FBI seek a court order before viewing the contents of queries for information about Americans’ communications in the program database. The restriction, which is based on a proposal first floated by Rep. Adam B. Schiff (D-Calif.), would apply only to criminal cases.
But by midafternoon Wednesday, Nunes told reporters that the reauthorization effort was dead “for now” and that decisions about how to proceed were being made “above my pay grade.” The House Rules Committee also canceled plans to review the proposed legislation Wednesday afternoon.
The Intelligence Community has had the predictable cow:
Reauthorizing Section 702 before it expires is vital to keeping the nation safe. Let us be clear: if Congress fails to act, vital intelligence collection on international terrorists and other foreign adversaries will be lost. The country will be less secure.
There is no substitute for Section 702. If Congress fails to reauthorize this authority, the Intelligence Community will lose valuable foreign intelligence information, and the resulting intelligence gaps will make it easier for terrorists, weapons proliferators, malicious cyber actors, and other foreign adversaries to plan attacks against our citizens and allies without detection. Section 702 has been instrumental in preventing attacks on the homeland and removing terrorists from the battlefield.
To be clear – Congress is not required to make any changes to Section 702. The Intelligence Community conducts and uses 702 collection in a manner that protects the privacy and civil liberties of individuals. Every single court that has reviewed Section 702 and queries of its data has found it to be constitutional. The Intelligence Community’s use of Section 702, which permits targeted surveillance only of foreign persons located outside the United States, is subject to extensive oversight and incorporates substantial protections to protect the privacy and civil liberties of individuals. In short, we believe Congress got it right in 2008 when it passed Section 702 and in 2012 when Congress reauthorized it. Nevertheless, the Intelligence Community continues to be open to reasonable reforms to Section 702 to further enhance the already-substantial privacy protections contained in the law, but we simply cannot support legislation that would impede the operational efficacy of this vital authority.
That third paragraph is so chock full of lies, half-truths and fantasies that it makes you want to gag. It isn’t the conduct of the Intelligence Community, per se, that is the issue. It is the conduct of the political masters of the IC that have shown just how profoundly dangerous and un-American the law it.
Right now I’m with the Freedom Caucus and Rand Paul and Adam Schiff and Mike Lee and Ron Wyden. That law is dangerous and needs major modifications if it is to remain if force. We can survive terrorist attacks. We can’t survive allowing a police state to develop in which American citizens are eavesdropped upon out of idle curiosity.