During a March 9 House Intelligence Committee hearing, Representative Darin LaHood dropped a bombshell: the Federal Bureau of Investigation conducted multiple unlawful searches of his name as part of the controversial program “Section 702.”
Should the FBI’s targeting a House member prompt Congress to kill Section 702 of the Foreign Intelligence Surveillance Act? This program is, after all, supposed to be about preventing attacks on Americans from international terrorist networks and adversarial nations. But despite having his privacy trampled, LaHood wants to keep the program in place. After chewing out the FBI, LaHood concluded, “702 deserves to be reauthorized because it is an invaluable tool to our efforts to counter the threats of our adversaries.”
Yet reauthorization is not assured. Section 702 expires this year if Congress does not act. The Biden administration has proposed renewing it without significant changes. Yet several leading House Republicans have said such a “clean” reauthorization won’t happen. Politico reported, “A group of House Republicans [is] already discussing letting the surveillance authority sunset entirely.”
Ever since Congress and the president established Section 702 warrantless surveillance authority in 2008, Republicans have been far more supportive of it than Democrats. Now it’s a Democratic administration aggressively lobbying to save this tool of law enforcement, but some Republicans are trying to end it. What’s going on?
Following the September 11 terrorist attacks, Republicans reveled in their reputation as the national security party. President George W. Bush quickly and secretly signed an executive order allowing the National Security Agency to eavesdrop, without warrants, on communications between Americans and foreigners with suspected links to terrorism. When the order was revealed by The New York Times in 2005, many Democrats and civil libertarians questioned whether it violated the law and the Constitution. Yet Congress, in a 2008 bipartisan vote, chose to retroactively give Bush’s past actions a legal foundation, amending the Foreign Intelligence Surveillance Act with Section 702 authority. Every House Republican but one voted for the bill, while a slight majority of House Democrats voted against it.
In 2012, President Barack Obama signed a five-year extension of 702 authority, but the partisan breakdown in the House was similar to 2008, with 60 percent of House Democrats voting “Nay,” compared to just 3 percent of Republicans. Six months later, Edward Snowden leaked a trove of NSA documents to Glenn Greenwald, then at The Guardian, and Barton Gellman, then at The Washington Post. Both publications would share a Pulitzer Prize for Public Service for their coverage of the leaks, even though Greenwald’s contributions were particularly opinionated and sensationalized, painting a picture of a needlessly voyeuristic NSA.
Obama would later sign the USA Freedom Act, which mildly reformed federal surveillance programs but left Section 702—not yet due for a reauthorization—in place. Strong majorities of both House Republicans and Democrats voted in favor. Snowden acolytes sought to take credit for the modest reforms while lamenting how the surveillance state remained a colossus. Greenwald conceded the bill left “undisturbed the vast bulk of what the NSA does.”
Section 702 next came up for reauthorization in 2018. With Donald Trump as president, the Republican Party’s attitude towards government surveillance had begun to shift. The FBI’s probe of Trump’s 2016 presidential campaign and Russian officials had become public, and the president whipped up conservative anger against the so-called Deep State.
Right before the vote, Trump posted on Twitter what sounded like opposition to reauthorization—and not just Section 702, but the entire 1978 FISA law: “This is the act that may have been used … to so badly surveil and abuse the Trump Campaign by the previous administration and others?” (Chris Fonzone, the General Counsel for the Office of the Director of National Intelligence, said this past January that the FBI investigation into the Trump campaign “did not involve the Section 702 program.”)
Still, the bill passed with a majority of House Republicans in favor (and a majority of House Democrats opposed). However, unlike past FISA reauthorizations, nearly one-fifth of the House GOP conference broke ranks. One week later, Trump signed the bill and issued a formal signing statement (doubtfully written by him) full of praise. He singled out Section 702 as “among the Nation’s most effective foreign intelligence tools. It has enabled our Intelligence Community to disrupt numerous plots against our citizens at home and our warfighters abroad, and it has unquestionably saved American lives.”
Authorship of the statement aside, this is why Section 702 has withstood the years of controversy: It works.
In December 2013, the President’s Review Group on Intelligence and Communications Technologies, created by President Obama, issued a report declaring:
During the course of our analysis, NSA shared with the Review Group the details of 54 counterterrorism investigations since 2007 that resulted in the prevention of terrorist attacks in diverse nations and the United States. In all but one of these cases, information obtained under section 702 contributed in some degree to the success of the investigation. Although it is difficult to assess precisely how many of these investigations would have turned out differently without the information learned through section 702, we are persuaded that section 702 does in fact play an important role in the nation’s effort to prevent terrorist attacks across the globe.
Several months later, the Privacy and Civil Liberties Oversight Board—an independent agency created by Congress during the George W. Bush administration—drew a similar conclusion and said that Section 702 contributed to “well over one hundred arrests on terrorism-related offenses.”
And the board addressed whether the surveillance had to be warrantless to be effective: “One might ask whether the government could have monitored the communications of the overseas extremists without Section 702, using the traditional FISA process. In some instances, that might be the case. But the process of obtaining court approval for the surveillance under the standards of traditional FISA may … limit the number of people the government can feasibly target and increase the delay before surveillance on a target begins, such that significant communications could be missed.”
The oversight reports severely undermined the narrative pushed by Snowden, Greenwald, and other civil libertarians that the feds engaged in reckless mass surveillance for no legitimate purpose. Snowden dealt with that problem by misrepresenting the reports’ conclusions. He told the European Parliament in March 2014 (after the publication of the previously mentioned PRGICT report but before the PCLOB report) that “two independent White House reviews” determined the claim of 54 thwarted terrorist attacks was “untrue.”
Snowden was lying by omission. What the governmental reviews were unimpressed with was a different surveillance program that collected “metadata,” such as email headers. (That program was replaced with a narrower version in the 2015 USA Freedom Act, then that program’s authority expired at the end of 2020 when Congress failed to pass new legislation.) Snowden didn’t mention the positive assessment of Section 702, which captures the actual content of phone and email communication.
Nine years later, as this year’s Section 702 debate begins in earnest, the program’s critics are tacitly ceding the argument over the program’s effectiveness. A January meeting of the PCLOB focused on Section 702 featured speakers from federal surveillance agencies and representatives from privacy advocates such as Electronic Privacy Information Center and Electronic Frontier Foundation. The meeting began with the commander of the U.S. Cyber Command, General Paul M. Nakasone, summarizing how the program protects Americans beyond counterterrorism: “We have used information from FISA Section 702 to prevent weapon components from reaching hostile foreign actors. We have identified threats to U.S. troops. We have discovered sanction evasions and disrupted foreign cyber-attacks. And intelligence acquired under this authority has stopped significant terrorist plots, saving American lives. I want to repeat that. We have saved lives because of 702.” No one who spoke after him rejected his claims.
Instead of questioning how effectively Section 702 is blunting threats from abroad, critics on the left and the right are spending more time arguing that the program—the FBI, in particular—is overreaching at home. And the FBI has given its critics plenty of fodder. Beyond the revelation about querying Rep. LaHood, a recent government audit by the Justice Department and the Office of the Director of National Intelligence found the FBI wrongly searched unredacted NSA data on American individuals on multiple occasions, including one search on a “local political party.” Another audit from ODNI found that between December 2020 and November 2021, the FBI performed nearly 3.4 million queries on Americans (though since a single American can be part of many queries, that does not mean data on 3.4 million individuals was searched.) If such queries regard domestic crime—and not foreign intelligence or national security—the FBI is supposed to obtain approval from the Foreign Intelligence Surveillance Court. But ODNI found four incidents when a court order was required yet not sought.
But these data points need not be woven into a hysterical narrative. We know about the FBI’s compliance problems because of the oversight reports from intelligence and law enforcement agencies. These reports did not charge the FBI with nefarious intent but with “misunderstanding the querying rules,” such as wrongly using the data to vet potential sources and employees or conducting searches with “overly broad” search terms. In August 2020, Attorney General William Barr ordered a new regime of internal FBI audits, which Barr’s successor, Merrick Garland, has been carrying out.
This month, FBI Director Christopher Wray said the reforms are working, with bureau queries of Americans in 2022 down 93 percent from the year prior. Immediately after LaHood broke the news about the FBI’s query of him, Wray responded, “All of those problems, and they are problems, all of those compliance violations, and they are violations, predate, predate all of these reforms.”
Should we take Wray at his word? No. That’s why we have regular audits from the ODNI and the Justice Department, which uncovered the problems in the first place. Assessing the FBI’s reform efforts before amending Section 702 would be a reasonable course of action.
However, those with ideological axes to grind will not be eager to give the FBI reforms a chance to work. And unlike nine years ago, the ideological axes have grown sharper among Republicans.
For example, Representative Jim Jordan, now House Judiciary Committee chair, last October went on Fox News and delivered an unhinged rant. He railed about how the FBI “spied” on Donald Trump’s 2016 campaign, raided Mar-a-Lago, and suppressed information on Hunter Biden. “I think we should not even reauthorize FISA,” Jordan fumed. Another House Judiciary Committee member, Andy Biggs, who peddles similar conspiracy theories, has introduced legislation to repeal FISA. (Both Jordan and Biggs voted against FISA authorization in 2018.)
Greenwald and Snowden still oppose Section 702. But they no longer have the same cachet among Democrats and progressives as they once did. Both condemned Hillary Clinton during the 2016 general election campaign as a warmonger. Greenwald has echoed Trump’s talking points about Russia, became a fixture on Tucker Carlson’s Fox News show, never misses an opportunity to mock the Democratic Party, and even drifted rightward on transgender issues. Snowden, meanwhile, is now a Russian citizen. Their reduced standing in Democratic circles helps explain why Biden can support reauthorizing Section 702 without triggering his base.
Still, some Democrats with longstanding civil libertarian views regarding surveillance may be tempted to work with anti-FBI Republicans. Representative Pramila Jayapal, who sits on the Judiciary Committee and chairs the Congressional Progressive Caucus, tweeted last month, in response to an article about the FBI’s poor 702 compliance, “This is totally unacceptable AND a great example of why any FISA reauthorization must include meaningful reforms to protect Fourth Amendment rights.” But she and others should think twice before partnering with Jordan and Biggs, validating their scurrilous nonsense and undermining trust in our institutions.
At the same time, resisting any reform of Section 702 may be a political non-starter in this Trumpified House. While LaHood is not letting the FBI query diminish his support of Section 702, he also said the bureau has “a significant trust issue with members of Congress” and that the intelligence committee’s “FISA working group must and will pursue reforms and safeguards through this reauthorization process.” The Illinois Republican, whose father, Ray LaHood, was also a GOP member of the House and Obama’s first transportation secretary, knows his caucus. He is signaling that Republicans must include some FISA reforms to tell their conspiracy-minded base they have done something to rein in the FBI. However, if the proposed reforms go too far and threaten the effectiveness of Section 702, it may lose support from the White House and fail to secure majorities in Congress.
The task of finding the legislative sweet spot rests with congressional negotiators. But what will help their efforts is a discourse around Section 702 that puts facts in context and does not allow disingenuous arguments to take root in the public’s mind.