Congress Wants to Tie the Intelligence Community’s Hands for No Reason
Reforming national security law for the sake of reform is never a good idea.
What happens when you start with panicky civil libertarians, sprinkle in some right-wing conspiracy theories about “unmasking” intelligence, and polish it off with a healthy dose of congressional dysfunction and a self-imposed legislative deadline? You get bad surveillance policy in the name of reform. Don’t look now, but that’s what’s shaping up in Congress at this moment.
In a little less than three months, Section 702 of the Foreign Intelligence Surveillance Act (FISA) — which authorizes the government to monitor, without an individualized warrant, the communications of non-U.S. persons reasonably believed to be overseas — is set to expire. Section 702 is a very big deal; it cannot be allowed to expire for any length of time without real damage to ongoing intelligence operations. So the closer we get to the sunset, the more opportunity there is to include mischievous “reforms” that the intelligence community simply has to accept — everyone knows the intelligence community would rather take some very bitter pills than lose a program it needs to accomplish its mission.
Last week, the House Judiciary Committee introduced legislation to reauthorize the 702 authority, but it included a number of changes — including a few that are quite significant. No, this bill isn’t the worst thing in the world. The sky isn’t falling. And plenty of other proposals to reform 702 would inflict far more serious harms than this one would. But it’s not a good bill either. It would make the FBI’s job harder for no good reason. It responds to imagined risks, rather than real abuses.
The Judiciary Committee bill is the product of an endeavor that was flawed from the outset. Its drafters were operating from the apparent premise that while 702 is a critical national security authority that must be preserved, a “clean reauthorization” of it without changes is currently a political impossibility. Why is that? Liberals and civil libertarians have always had anxieties about 702. Libertarian conservatives and tea party types have more recently joined the fray. Over the last year, the fraudulent “unmasking” controversy — most of which has nothing to do with 702 — has stoked these anxieties. And lots of people have instinctive difficulty vesting powerful authorities in the hands of the intelligence community under President Donald Trump. The House Judiciary Committee is one of the House’s more polarized committees, so the apparent goal was to thread the needles and draft a bipartisan bill that might satisfy calls for reform while minimizing operational impacts. And if it passes the Judiciary Committee, the bill has a good chance to become law.
If you accept the premise that precluded a clean reauthorization, the committee’s bill is a decent — though far from perfect — effort.
We don’t accept the premise, however, but start with a different one: This is an already dense and complicated area of law in which it is tough for national security operators to do their jobs. To make it denser and more complicated, you need a reason. Reform for reform’s sake is not a good enough reason to add complexity.
The current bill’s most substantive reforms take aim at the so-called “backdoor search loophole,” which critics claim is a civil liberties concern worthy of legislative attention. The argument goes like this: In targeting non-Americans, the National Security Agency regularly, though incidentally, sweeps up information about Americans — information that the FBI is then permitted to query, without a warrant, for purposes unrelated to foreign intelligence. Privacy advocates have warned that information collected for foreign intelligence purposes will inevitably come to be used against American citizens for things like minor drug crimes and tax evasion.
Even steadfast national security types like former CIA acting Director Michael Morell have called to end the practice. In a Washington Post op-ed, Morell, together with co-author Geoffrey Stone, wrote that “[t]he government should no longer be permitted to search the data collected under Section 702 without a warrant when seeking information about U.S. citizens and legal permanent residents.”
Rather than requiring the government to get a warrant for all U.S. person queries, as many privacy advocates have called for, the Judiciary Committee bill offers a compromise. It would require that the contents of communications queried for evidence of a crime may only be “accessed or disseminated” where the attorney general has obtained a court order from the Foreign Intelligence Surveillance Court (FISC) upon a showing of probable cause that the communication may provide evidence of a particular crime. But it contains an exception to the requirement for queries that have been “reasonably designed for the primary purpose of returning foreign intelligence information.”
It’s an elegant solution, in theory. The bill bifurcates criminal investigations — those of primary civil liberties concern — from foreign intelligence investigations. But it’s an elegant solution to a problem that doesn’t exist.
While reform advocates point to the possibility of the government using 702 to circumvent warrant requirements in prosecuting non-national security offenses or to comb through troves of data about Americans for reasons unrelated to the authorized collection, they can’t point to any evidence that it has actually happened.
Despite widespread misperceptions to the contrary, the FBI is only allowed to query an extremely small subset of 702 information relevant to its investigations, not the full range of 702 collection. An agent isn’t allowed to run a query out of curiosity or some other undefined impulse; the only authorized queries are those determined by procedures to be reasonably designed to return either evidence of a crime or strictly foreign intelligence information (as it relates to the FBI’s national security functions). In either case, if there is 702 information responsive to a query, the agent is only able to access it if he or she holds a FISA clearance in the course of normal duties. Otherwise, the agent needs to seek out a colleague with the necessary authorization and training on FISA minimization and handling procedures. Department of Justice oversight has repeatedly affirmed that its audits show FBI field agents understand and comply with the rules and offer valid justifications for queries. Despite advocate protestations to the contrary, federal courts have found that the intelligence community’s practice complies with all requirements of the Fourth Amendment.
What does this all amount to in practice? In 2016, exactly one FBI query in a non-national security investigation returned 702-acquired data about an American, and there was no whiff of impropriety in that case. The government has never used 702-obtained information in a criminal trial for a non-national security matter. Skeptics will point to any numbers of ways that government could theoretically be using 702 information short of that, but not to evidence that it is doing so. And there are a lot of things the government could be do doing that might violate your Fourth Amendment rights — breaking into your home while you’re at work and rifling through your underwear, for example. We normally don’t legislate prophylactically against abuses that we have no reason to think are happening. Civil liberties, like other policymaking, is about priorities. This is far from the most pressing issue in U.S. national security or surveillance reform.
A number of the other reforms included in the Judiciary Committee legislation are even more baffling.
The legislation codifies the end of a practice known as “abouts collection,” in which communications about a target are acquired in addition to communications to and from a target. This provision of the bill seems like an easy win: The NSA already voluntarily ended abouts collection earlier this year following a series of inadvertent compliance violations. The House Judiciary Committee bill would codify that as law for the next six years. But why? Ostensibly, it is to prevent the NSA from reversing itself on a whim. But in order to restart this form of collection, the NSA would have to demonstrate to the FISC that significant changes in technology or other circumstances made reliable compliance more feasible. The FISC would have to sign off on new procedures. The NSA would be required to notify Congress of the change. Is it really good policy to tie the NSA’s hands even where the court finds all issues remedied?
Or consider the strange provision that requires that the FISA court must appoint an amicus curiae, or special advocate and expert, in the certification process for Section 702’s surveillance programs to make the proceedings more adversarial with respect to the government’s position. Previously, the court appointed amici — which were established in the 2015 USA Freedom Act — at its discretion. The court has never indicated any need for a change in practice; indeed, if it wanted to appoint amici in every case it would and could. Currently, FISC judges rely on highly specialized staff attorneys and call on amici when they deem outside counsel useful to their decision-making. This provision usurps judicial discretion and further burdens a heavily strained court that would now need to justify each and every decision to not use the help it didn’t ask for.
So how did we get here?
Usually, a problem or controversy emerges and Congress decides reforms are needed to address that problem. That’s more or less the process that occurred during the last round of surveillance reauthorization, whereby Section 215 of FISA was amended by the USA Freedom Act. This wave of reform reflects a different phenomenon: Here, Congress decided reforms were politically necessary and then set out in search of problems to fix.
This is partly a product of the sunset provisions that automatically expire certain FISA authorities after a designated period. Sunset provisions can serve a valuable function by shifting the inertia away from congressional inaction and forcing periodic debate on important legislative matters. Without sunset provisions, any number of valuable surveillance reforms would not have happened. The trouble is that sunset provisions presume a level of congressional functionality that is not evident today. Specifically, they presume that Congress wouldn’t play chicken with an important national security authority. If 702 did not include a sunset provision, we would not be pondering changes to 702 so utterly unsupported by anything like evidence.
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Susan Hennessey is managing editor of Lawfare.