{T} he collection of foreign intelligence outside the United States is crucial to protecting our national security and vital interests around the world. That collection is governed by a statute popularly known as Section 702. The provision was enacted in 2008 as an amendment to the 1978 Foreign Intelligence Surveillance Act (FISA). It is thus at the center of our wrongheaded legal regime, which has transferred oversight of the executive’s core political function — protecting the nation from hostile alien regimes and their agents — to the judiciary, the branch of government least well-equipped, institutionally and practically, to perform that role.
As such, Section 702 is ill-conceived. But that doesn’t make it any less crucial. For Congress to fail to reauthorize the provision by allowing it to lapse at the end of this month, or to supplant Section 702 with something even more ill-conceived and unworkable, would be a potentially catastrophic blunder.
This is the first of what will be a series of periodic columns pertaining to this month’s reauthorization debate. In it, I will undertake to do three things: (1) examine the misconceptions that undergird our system of foreign counterintelligence, the fundamentals of which Washington is loath to address; (2) delve into what Section 702 does and why it is controversial; and (3) assess the allegations, posited by those who want the statute to lapse or be overhauled, that the statute greenlights spying on Americans.
To cut to the chase, the latter claim is simply wrong. This does not mean, of course, that there have been no abuses of power — like every law with which government agents are required to comply, Section 702 is occasionally violated. It is fair to argue that public accountability for these violations has been inadequate. It is just as fair to respond, however, that our agencies, particularly the FBI, have made great remedial progress, as recently detailed by the Foreign Intelligence Surveillance Court (FISC) — notable given that the FISC has been unsparing in its rebukes of Bureau noncompliance over the past decade-plus.
Far from giving Director Christopher Wray credit for that curative effort, critics have blamed the Bureau’s current leadership for the sins of past leadership (which principally involved abuse of FISA surveillance in the United States, not overseas foreign-surveillance operations controlled by Section 702). In reality, Section 702 extensively protects the privacy of Americans who are incidentally monitored in surveillance targeting foreigners — at least as much as (and I believe more than) our law protects the privacy of innocent Americans who, routinely, are incidentally monitored when criminal suspects are targeted in law-enforcement surveillance.
It is easy to see, then, why the FBI, the Justice Department, and our intelligence agencies are resistant to proposals for additional judicial intrusions into the collection of foreign intelligence, such as probable-cause warrants, which opponents of Section 702’s renewal would require before the FBI could access its database for information about Americans. Since the information stored in the database was acquired only after a rigorous process that features more protection for Americans than the Constitution requires, and since the FBI’s main purpose in seeking to peruse the database is foreign intelligence, an additional warrant requirement would not merely be unnecessary, it would obstruct the executive branch’s duty to safeguard our homeland and vital national interests.
That said, though, I believe the FBI and other agencies may have overstated their resistance to warrants, to their detriment. It turns out that Section 702 already requires judicial approval, based on a finding of probable cause, in the one situation where a warrant should be required — namely, when the FBI seeks to search the government’s foreign-intelligence database not for foreign-intelligence purposes but for evidence of crime.
In some of the information the government is putting out in order to advocate for Section 702’s reauthorization (including, for example, this Senate Judiciary Committee testimony by various intelligence officials), it is made clear that Section 702 permits the FBI to query the database in connection with law-enforcement investigations. Yet weirdly, it is not made clear that Section 702 forces the FBI to seek a probable-cause warrant from the FISC for that purpose. The statute is very clear on this. (See Section 1181a of Title 50, where Section 702 is codified in the U.S. Code; the relevant subsection is §1181a(f)(2)(C) & (D).)
Making this crystal clear would rebut the best argument made by Section 702’s naysayers. In point of fact, the government is not opposing a warrant requirement; it is instead defending a statute that already requires a warrant in cases where there should be one. This is no doubt why the FISC, in its recent opinion (p. 93), wrote:
Given recent indications that the FBI is improving its implementation of Section 702 querying requirements, the Court finds that the FBI’s querying and minimization procedures, taken as a whole and as likely to be implemented, are consistent with the requirements of the statute and the Fourth Amendment.
The Trouble with FISA
Section 702 was initially enacted in 2008 as an amendment of the 1978 Foreign Intelligence Surveillance Act (FISA). In a nutshell, Section 702 is the authority granted by Congress for our intelligence agencies, under court supervision, to collect intelligence concerning non-Americans outside the United States.
Right away, it’s worth pausing to observe some anomalies, some Washington buck-passing that, as ever, has taken a bad idea and turned it into a worse idea.
First, the safeguards of the United States Constitution, including the Fourth Amendment’s protection against unreasonable searches, do not extend (or, at least, should not be thought to extend) to non-Americans outside the United States.
Second, intelligence collection against foreign powers outside our territory is an aspect of foreign relations. That is a classic political function of government, preeminently executive in nature. In principle, there is nothing wrong with Congress’s addressing it by statute, as long as doing so does not purport to reduce the executive branch’s inherent constitutional power. But the president’s authority to gather information outside our country regarding foreign powers — for the purpose of protecting the United States against foreign attack or subterfuge — should be unfettered, especially since we couldn’t possibly anticipate the infinite array of potential foreign dangers.
Ergo, Congress regulates in this area at the nation’s peril: Unless legislation regarding foreign intelligence-gathering simply reaffirms the president’s broad constitutional power, it is likely to be restrictive. This is imprudent (and quite likely unconstitutional) because it tends to reduce the president’s options in a crisis. However, to observe that the Framers gave the president a wide berth in the realm of foreign relations, including foreign intelligence, is not to say they placed the president above or outside the law. If surveillance powers are abused, the president can be held politically accountable by congressional oversight and even impeached; Congress, furthermore, can also slash funding for unduly adventurous intelligence operations. And that should be incentive enough for the executive branch to refrain from abuse.
Despite these considerations, Congress has chosen to restrict the president’s foreign-intelligence-surveillance authority by statute. We’ll come to why. For now, let’s stick with how. Congress did not, as the Article I branch responsible for checking executive overreach, endeavor to oversee the president’s exercise of foreign-intelligence-surveillance power. Instead, in enacting FISA, lawmakers delegated their Article I responsibility to the judiciary — i.e., the nonpolitical branch, which has (a) no constitutional responsibility for safeguarding the nation from foreign threats; and (b) no institutional competence to oversee executive intelligence-collection operations outside the United States, where the writ of our courts does not run and the aliens targeted for monitoring by our spy agencies lack U.S. constitutional protections. (This context is saliently distinct from domestic law enforcement, which implicates the judiciary’s most important duty: shielding Americans from unconstitutional or otherwise illegal government investigative tactics.)
This creation of the FISC (often called the “FISA court”) enmeshed the nonpolitical branch in the inherently political function of foreign-intelligence collection. It was a terrible idea, a typical Washington overcorrection, this time in response to the spy scandals of the Sixties and Seventies.
In some ways, it was understandable (as overcorrections always are). The executive abuse at issue was the exploitation of national-security surveillance powers to spy on domestic political enemies, including radical groups. To be sure, some of those groups engaged in terrorism, but many did not. And in any event, domestic terrorism is always intertwined with political dissent; the illegal violence of the former does not vitiate the constitutional protection of the latter.
On that score, the FISC’s creation was a half-baked application of the Supreme Court’s so-called Keith decision (the 1972 ruling in United States v. United States District Court). There, the justices held that legitimate national-security concerns (as distinguished from quotidian suspicions about crime) could not justify warrantless surveillance of domestic suspects, since the practice could too easily devolve into illegitimate spying on political opponents. Regardless of what one thinks of Keith, the Court took pains to distinguish in it domestic security threats, which typically involve Americans protected by the Constitution, from foreign security threats, which typically don’t.
The overwhelmingly Democratic post-Watergate Congress instead conflated these threats. In FISA, lawmakers required that the executive branch obtain a judicial warrant to surveil a person — whether an alien or an American — who was suspected of acting as an agent of a foreign power. There were caveats. Taking some heed from Keith, Congress did not call for the FBI to satisfy the Fourth Amendment criminal-law standard of probable cause of a criminal violation in order to justify a FISA warrant; instead, less onerous proof — probable cause that the target was acting as a clandestine foreign agent — was required. Moreover, FISA drew a bright line between surveillance inside and outside the United States; for the latter, it neither required a warrant nor undertook in any way to restrict the executive’s authority, its duty, to collect foreign intelligence and protect the nation from foreign threats.
Prioritizing Due Process for America’s Enemies over Security for Americans
Even with these nods to common sense, FISA was a bad idea on many levels.
Entangling the courts in the executive’s foreign-intelligence-gathering function undermined the important perception of judicial impartiality when the courts were inevitably called on to perform their proper, nonpolitical role: ruling on the legality of court-authorized surveillance. More basically, the FISC not only lacked institutional competence to assess the country’s intelligence needs (a deficiency it was hoped the creation of a specialized intelligence court would eventually overcome); it also had no way of judging the veracity and significance of information provided by the Justice Department and FBI — and, because this was the realm of classified national-security matters, not law enforcement, there could be no defense lawyers and investigators to assist the court by pointing out defects, as in normal, adversarial judicial proceedings.
It is not enough to say that, unsurprisingly, the FISC resembled a rubber stamp. The system affirmatively invited executive misconduct with no accountability. That is, because there was little chance that the court would detect executive overreach or misrepresentation, the Justice Department and FBI would now have the cover of judicial sign-off if misconduct was discovered. (Recall during Russiagate how many times we heard Trump detractors insist that if the FBI had really provided the FISC with bogus information — as we now know it did — the FISC judges would never have signed off on the warrants.)
On the other hand, of course, if the executive agencies properly carry out their foreign-intelligence mission of protecting us from alien threats — as they do in the vast run of counterintelligence investigations, which have nothing to do with partisan politics — then the FISC should be a rubber stamp. After all, the executive’s foreign-relations authority is political in nature and nigh-plenary, so a judge has no business second-guessing its exercise.
As a result, when the FISC occasionally stirs itself to act like a court and exhibit skepticism about an executive application, the unintended consequence can be to shield foreign malefactors at the expense of American national security. This is the inevitable outcome of making courts (politically unaccountable and obligated to promote due process rather than American safety) responsible for foreign-intelligence collection (the duty of the executive politically accountable to the people whose safety is at risk): You get more due process for terrorists and saboteurs, and less security for Americans.
Best example: In a mid-Nineties blunder, the Justice Department instituted procedures known as “the wall,” which prevented foreign counterintelligence agents from sharing information with law-enforcement investigators and prosecutors. This gratuitous self-blinding contributed materially to the FBI’s failure to detect and prevent the 9/11 atrocities (as Stewart Baker details in Skating on Stilts). Yet, even after the Justice Department and Congress dismantled the wall post-9/11, the FISC tried to re-erect it by judicial fiat — a ukase finally rejected on appeal in 2002 (in the first case ever decided by the Foreign Intelligence Surveillance Court of Review).
Not only was FISA structurally flawed; it rapidly became a relic of a world left behind by the telecommunications revolution. In the next column of this series, we’ll turn to the ramifications for counterintelligence created by information-age tech.