Why Congress Shouldn’t Expand Intelligence Agencies’ Power To Spy On Americans

Why Congress Shouldn’t Expand Intelligence Agencies’ Power To Spy On Americans

What will it take for some Republicans to stop blindly supporting the federal government’s most powerful bureaucracy?
Willis L. Krumholz
By

In the last few years, members of Congress and their staff have been spied on, including during the Iran deal. Even the Senate committee tasked with oversight of the intelligence agencies was spied on during the Obama administration.

Journalists were spied on, too. Sharyl Attkisson, with CBS News at the time, had her computer hacked and sifted through while she was reporting on a story damaging to the Obama administration. Associated Press reporters were spied on, in an effort to frighten potential whistle-blowers. Fox News reporter James Rosen was spied on, and so were his parents.

More recently, Obama administration officials “unmasked” the intercepted communications of people in the Trump campaign who were talking with foreigners, then unknown members of the federal bureaucracy leaked these communications to the press.

A presidential campaign was spied on too. An unverified dossier, that nobody will stand by when under oath, was likely used to obtain a warrant in a secret court to spy on at least one member of the Trump campaign. The same bureaucracy that used the dossier to spy on a presidential campaign—the FBI—has, for months, refused to cooperate with the congressional committees tasked with keeping the FBI in check.

Americans of all stripes are surely asking: What is going on with our government?

The problem, fundamentally, is that Congress has given our intelligence agencies too much power, and refuses to check these agencies even when they flagrantly abuse the vast powers they have been granted. A case in point is the FISA Section 702 reauthorization vote, set to occur today in the House.

What Is FISA 702?

After the abuse of trust that occurred at America’s intelligence agencies in the 1960s and 1970s, Congress passed the Foreign Intelligence Surveillance Act, or FISA, in 1978. Its aim was to allow our government to spy on foreign powers, and agents of foreign powers here in America, without violating Americans’ Fourth Amendment rights. If an American were acting as an agent of a foreign power, the government had to go to a secret court—the FISA court—to obtain a warrant before spying on that American.

The current provision within FISA meant to allow snooping on foreigners, Section 702, was passed in 2008. This amendment grants our intelligence agencies powerful tools to conduct surveillance. Because the power 702 grants intelligence agencies expires, something written into the law to protect against abuse and allow Congress to have some oversight, Congress has only several weeks to reauthorize 702 before the program starts to lapse, which could threaten our national security.

That’s all well and good, yet intelligence bureaucracies have interpreted FISA 702 as it is currently to allow spying on Americans—or it has been routinely abused to do so. Because of this, conservatives and left-leaning civil-libertarians hoped to reform 702 before reauthorizing the program. But there is an effort in Congress, backed by GOP leadership, to not only reauthorize 702 without any meaningful reforms, but to also expand intelligence bureaucracies’ legal powers. A vote on this will occur today.

How Section 702 Is Used to Spy on Americans

Section 702 in theory only allows spying on foreigners. When a foreign subject of surveillance is talking to an American, the U.S. person’s end of the conversation is supposed to be redacted, or “masked,” when executive branch or intelligence officials examine the intelligence. But when an official needs to see the American’s side of the conversation, it can be “unmasked.” The problem is that this unmasking doesn’t require a warrant, and there aren’t (or weren’t) clear rules put in place about when an unmasking is appropriate.

This has been abused in just this last year. Michael Flynn, Trump’s national security advisor, called foreign officials after team Obama made several unprecedented foreign policy moves only days before the transition of power. Flynn was attempting to stop Obama’s team from radically altering U.S. policy towards Israel at the United Nations, and asking Russia to not retaliate against the sanctions that Obama slapped on.

Nothing Flynn said on the call was illegal or improper, but Flynn’s end of the conversation was unmasked then leaked to the press in order to catch Flynn in a lie. The leak—which was flagrantly illegal—caused Flynn, who happened to want to reform America’s intelligence bureaucracies, to be fired.

This isn’t the first time that Americans have had their communications with foreigners unmasked and leaked for political reasons. Other members of the Trump campaign had their conversations “unmasked.” Two Democrat members of Congress were spied on in the 2000s, and members of Congress were unmasked when they spoke with Israeli officials during the Iran nuclear deal negotiations.

Much larger abuses result from the National Security Agency’s upstream data collection. Basically, in the process of scooping up foreigners’ emails that run through our Internet infrastructure, the NSA incidentally collects quite a bit of emails and other data on ordinary Americans. The information is stored in a database, where it is supposed to be sifted through so the foreign target’s communications are kept, while the bulk of the data collected—Americans’ private communications and data—are deleted. In practice, this doesn’t happen and the NSA keeps all of the Internet data.

Big Brother Really Is Watching You, Without a Warrant

Worse, the NSA can then search through the upstream Internet data using an “identifier,” such as an email address or a phone number. NSA employees aren’t supposed to search for Americans’ names in that database, but they have routinely done so. Think of Google, but for looking at Americans’ communications.

This abuse was so flagrant that the normally pro-government FISA court blasted the Obama administration’s FBI and NSA just days before Obama was set to leave the White House. The court cited “an institutional lack of candor,” and called the violations a “very serious Fourth Amendment issue.” Here’s what National Review’s Andrew McCarthy had to say:

The rules from 2011 [to stop previous Fourth Amendment abuses] forward were simple: Do not use American identifiers. Yet NSA used them — not once or twice because some new technician didn’t know better. This violation of law was routine and extensive, known and concealed.” McCarthy also writes that, according to the FISA court, the violations were so widespread that by the time Obama left the White House, the scope of these violations had still not been determined.

Even when the NSA hasn’t violated the law per se, they have still been able to snoop on Americans without a warrant using these tools. First, let’s say that the FBI wanted to spy on Flynn, but can’t without a warrant. What they can do is spy on any foreigner Flynn talks to. This is called a “backdoor” search. You really want to spy on Flynn, but you say you are only spying on some guy in Germany. Same result.

Second, if you don’t search for an American target, the NSA has in the past searched for a foreign target’s “identifier,” but allowed the results to show any Americans’ communications that mention that foreign identifier. This is called an “about” search (currently, the NSA is not supposed to be doing “about” searches).

There are huge implications to this, an example of which just played out in the last administration. Here’s McCarthy again: “The NSA says it does not share raw upstream collection data with any other intelligence agency. But that data is refined into reports. To the extent the data collected has increased the number of Americans whose activities make it into reports, it has simultaneously increased the opportunities for unmasking American identities. Other reporting indicates that there was a significant uptick in unmasking incidents in the latter years of the Obama administration. More officials were given unmasking authority. At the same time, President Obama loosened restrictions to allow wider access to raw intelligence collection and wider dissemination of intelligence reports.”

Quite obviously, all this gives the intelligence bureaucracies an immense amount of power. If they don’t like a business deal, a politician, a policy, or a bill—say, one that significantly reduces their power—they can selectively leak information to destroy a reputation or torpedo the deal. When they don’t like who is in the White House, many in the media spin the leaking to be heroic, but this is a perversion. Really, unelected intelligence community officials are pulling the levers of power.

That’s not being “heroic” and shedding sunlight. That’s selectively leaking to create a narrative, and exert power over our elected officials. That’s the East German Stasi, not James Madison.

Proposals to Reform FISA 702

Lawmakers have certainly tried to look into these abuses of power. During a hearing on FISA 702 reauthorization, for example, Rep. Ted Poe (R-TX) asked FBI Director Chris Wray “how many times the FBI has searched FISA databases for information belonging to U.S. citizens.” Wray said he didn’t know, and committee chairman Bob Goodlatte (R-VA) was quick to note that the request was “reasonable” and “has been made in varying forms by this committee in a bipartisan way in the past, and we have not yet received the answers to those questions.” The Senate has made similar requests, to no avail.

Because of this lack of accountability, conservatives in Congress have been pushing FISA 702 reform. There are two primary reform proposals in Congress to reauthorize FISA 702, supported by different factions. Reason gives a good overview:

USA Liberty Act of 2017 (HR 3989)

  • A creature of the House Judiciary Committee, this bill would create specific procedures to document requests for unmasking, and would require federal investigators to get a court order to access the content of the domestic communications when looking for evidence of a crime (and require that the search be directly related to the investigation). The bill contains exceptions to these rules for foreign intelligence, and emergencies.
  • The bill doesn’t permanently end “about” searches, but its sister bill in the Senate, sponsored by Pat Leahy (D-VT) and Mike Lee (R-UT), does permanently ban “about” searches, and contains stronger language on the warrantless surveillance of Americans.
  • The bill would sunset, and thus need to be reauthorized, in six years.

USA RIGHTS Act of 2017 (S.1997)

  • A more civil-libertarian reform option, sponsored by senators Ron Wyden (D-OR) and Rand Paul (R-KY). Mike Lee (R-UT), Elizabeth Warren (D-MA), and Bernie Sanders (D-VT) have also signed on.
  • Unlike the USA Liberty Act, this bill requires the feds to get a warrant before searching the info or communications of U.S. citizens or people on U.S. soil. There are exceptions to this, but only for espionage, terrorism, or other threats to the United States.
  • The bill explicitly bans reverse targeting of Americans and “about” searches, and U.S. citizens are given “standing” to go to court if they believe they were snooped on illegally.

On the other end, aside from a clean reauthorization of FISA, establishment Republicans and Democrats are seeking to dramatically expand 702’s surveillance authority, and permanently authorize these powers. The Senate version of this is called the FISA Amendments Reauthorization Act of 2017 (S.2010).

Republican senators backing this bill include Tom Cotton (R-AR), Richard Burr (R-NC), James Risch (R-ID), Marco Rubio (R-FL), John Cornyn (R-TX), Lindsey Graham (R-SC), John Thune (R-SD), James Lankford (R-OK), Roy Blunt (R-MO), Susan Collins (R-ME), Pat Roberts (R-KS), David Perdue (R-GA), Thom Tillis (R-NC), and John McCain (R-AZ).

The Senate bill explicitly grants the use of unwarranted surveillance for a list of federal crimes beyond terror and espionage and allows “about” searches. The House version of this bill, being voted on today, requires the FBI to get a warrant when doing full criminal investigations, but this is “illusory” because at this point the FBI could have already accessed all applicable 702 data without a warrant. This bill also fails to end “about” searches of Americans’ communications.

No One Should Support the Intelligence Committee’s Bill

Just before year-end, GOP leadership tried to pass a 702 bill with permanent reauthorization and no reform. Fortunately, the likes of Paul and Wyden stymied an attempt to do so at the eleventh hour. So Congress had to punt, funding the government and extending FISA until late January.

Unaccountable power corrupts and would be abused by even the best of us.

Now, instead of trying to pass the reauthorization bill that contained reforms and has widespread bipartisan support—The USA Liberty Act—GOP leadership is again attempting to pass the House version of the Senate Intelligence Committee’s bill. Today’s vote on this bill, and the USA RIGHTS Act, will almost certainly result in the USA RIGHTS Act failing to pass. But the vote over the intelligence committee’s bill could be close.

Of course the intelligence agencies support the bill that expands their powers. They also cite a “tough on crime” line to justify forgoing warrants to investigate domestic crime. But here’s the problem: There’s a reason that the Constitution requires law enforcement or intelligence officials get a warrant before spying on Americans. It’s not because the founding fathers were soft on crime, but because our founders understood human nature. Unaccountable power corrupts and would be abused by even the best of us.

Reformers’ efforts are pretty clear, then: honor the Fourth Amendment. That means that the intelligence bureaucracies stop backdoor searches of Americans, and spy on foreigners all they want, but always get a warrant before they spy on Americans.

A couple of years ago, Director of National Intelligence James Clapper, while under oath, lied to Congress and said the intelligence agencies were not collecting and storing data from Americans’ phone records, emails, and Internet activity. The actions of Edward Snowden, no matter how imperfect, revealed that the government was in fact collecting all kinds of data on ordinary Americans.

Failure to Restrict Surveillance Fosters a Police State

Remember all the intelligence community abuses listed at the top of this article? These are the abuses that we know about, many of which were only made possible by Snowden’s imperfect disclosure. In other words, Congress didn’t even know about these programs.

‘If the government doesn’t respect our basic civil liberties, we risk becoming a police state.’

Is it really wise to allow, and even encourage and enhance, unchecked federal government power? Rubio says laws that reform our intelligence agencies might as well have been lobbied for by ISIS. Is it really smart to give immense power to agencies that have routinely abused that power and ignore Congress, then essentially accuse anyone who wants to lessen those powers of abetting terrorists?

I spoke to Rep. Jason Lewis’ office (R-MN), and he said “national security is a vital responsibility of our government, but if the government doesn’t respect our basic civil liberties, we risk becoming a police state. In other words, we have to balance security with freedom. My first oath was to the Constitution, and our first freedoms are what make this country great. We have to protect them in order to protect the America we know and love.”

Lewis is exactly right. Those who choose security over liberty will have neither. What can you do? Get on the phone and call your member of Congress. Tell him or her that you would like to see meaningful FISA 702 reform, not the bill proposed by the House Intelligence Committee. Don’t donate money to campaigns or political parties if that money will go to candidates who vote to expand 702. Find specific candidates who champion civil liberties instead.

Willis L. Krumholz is a fellow at Defense Priorities. He holds a JD and MBA degree from the University of St. Thomas, and works in the financial services industry. The views expressed are those of the author only. You can follow Willis on Twitter @WillKrumholz.

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