April 15, 2024

Figuring Out the FISA Fight

The House reauthorized a key part of the Foreign Intelligence Surveillance Act on Friday, but to what end?

The House ultimately came to its senses on Friday. Sort of.

After 19 Republican privacy hawks had on Wednesday blocked the reauthorization of a particular Foreign Intelligence Surveillance Act tool known as Section 702, House Republicans managed to cobble together a bipartisan coalition with which to renew it a week before its scheduled expiration on Friday.

As The Washington Post reports: “In a bipartisan vote, the House reauthorized a part of the Foreign Intelligence Surveillance Act (FISA) on Friday, 273-147. But stark opposition from another bipartisan group of lawmakers moved far-right members to compel a motion to reconsider the legislation, forcing the House to vote [this] week on defending the measure and stalling its passage to the Senate, which must act before a lapse occurs [this] Friday.” (On a stylistic note, when hard-left Post scribes use the term “far-right,” they mean “freedom-minded.”)

The House bill reauthorizes FISA for just two years instead of five, so it will come under scrutiny again during the next administration. Sunlight, Justice Louis Brandeis once said, is the best disinfectant.

After meeting with House Speaker Mike Johnson at his Mar-a-Lago estate on Friday, Trump was asked whether he supported the House’s FISA reauthorization bill. “I’m not a big fan of FISA,” he said. “I look at it, and I studied, and I know it probably better than anybody. You know, they spied on my campaign,” Trump said. “I said, ‘You do what you want,’ but I’m not a big fan of FISA.”

Trump and all other liberty-minded Americans have every reason to be leery of FISA. And if you don’t understand this reluctance toward renewing it, then you might want to revisit how our nation’s grotesquely politicized intelligence services used it to create the Trump-Russia collusion hoax. Or perhaps you could simply review the Durham Report or the case of deep-stater Kevin Clinesmith, the otherwise unremarkable FBI cutout who doctored evidence involving Trump campaign advisor Carter Page to help the Obama-Biden administration secure a FISA warrant to spy on the entire Trump administration.

Yes, the Obama administration used FISA to spy on the Trump campaign and, later, the Trump administration. And short of a wrist-slap for Clinesmith, no one was ever held accountable for it. So, the fear of potential FISA abuses going forward is real, and it’s legitimate.

Having said that, however, it’s also true that FISA is an essential tool for foiling terrorists. “Section 702 is indispensable in keeping Americans safe from a whole barrage of fast-moving foreign threats,” said FBI Director Chris Wray on Thursday during his testimony before the House Appropriations Committee. “So if Congress lets 702 lapse, which it’s set to do now next week, it will massively increase the risk of missing crucial intelligence during a time of heightened national security threats across a whole multiple of fronts.”

Wray also offered assurances that Section 702 won’t be abused as it has been in the past:

Given the critical importance of 702, we’re committed to being good stewards of our authorities. To that end, I’ve ordered a whole host of changes to address unacceptable compliance incidents — reforms many members of this committee have now seen with their own eyes in live demonstrations of our systems at FBI Headquarters. We’ve improved our systems, enhanced training, added oversight and approval requirements, and adopted new accountability measures. On top of that, we stood up a brand-new Office of Internal Auditing that’s been focused specifically on FISA compliance.

We’re not sure how much credibility Wray has, given his infuriating lack of candor before Congress, and given his failure to reform the bureau in the wake of calls for its abolition. And we didn’t hear an apology on behalf of the bureau to former President Trump. Further, we’d remind Director Wray that no amount of “training” will prevent a dirty FBI operative from lying on a FISA application like Clinesmith did, or a dirty administration from ordering him to do so.

But it’s not just Wray who’s sounding the alarm. A far more trustworthy voice, that of former Trump CIA Director and Secretary of State Mike Pompeo, also weighed in: “There will be terrorist acts that take place that could have been prevented if this act is not renewed. That’s not just hyperbole.”

Pompeo also addressed the very real concerns that so many Americans have regarding our intelligence services, noting that recent FBI reforms “will put criminal penalties in place” for abuses by the bureau, in addition to providing for additional congressional oversight and reducing “by 90%” the number of people who can access any American’s information.

“So,” says Pompeo, “we have significantly sought to address the very concerns that the American people rightfully have.”

Americans are naturally and historically averse to government spying. We’re not a Soviet-era satellite, after all. But as former federal prosecutor Andrew McCarthy points out, we’re already being watched:

To begin with, Americans are incidentally monitored in every kind of lawful surveillance, including wiretaps conducted under the criminal law, as well as physical monitoring (when police watch where suspects go and with whom they meet). This incidental and unavoidable surveillance does not mean the FBI is using §702 to target Americans or to spy on them by such deceptive tactics as “reverse monitoring” (in which a foreigner is pretextually targeted so the agents can surveil an American with whom they know the foreigner communicates). The statute expressly prohibits those activities.

McCarthy also noted that the abuses and outrages of the Trump-Russia collusion hoax “had nothing to do with overseas surveillance under §702 … and the malefactors have been removed.”

That the bad actors have been removed is barely reassuring. This is a matter of public trust, and the intelligence services haven’t done anything to earn it. Still, despite its myriad flaws and abuses, FISA is a vital counterterrorism tool, and its renewal is, on balance, a good thing.

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