A brawl over FISA is coming.
‘I’m from the government, and I’m here to help.” Ronald Reagan famously described these as “the nine most terrifying words in the English language.” It may be time to propose a two-word corollary.
“Trust us.”
In the end, underneath the geek-speak of encryption, electronic intercepts, forward-looking infrared thermal imaging, satellite surveillance, and sundry collection technologies, that is what the government is really saying when it comes to national security: “Trust us. The intelligence collection we do is important — is essential – to keeping you alive. Oh . . . and don’t ask a lot of questions. You know, can’t discuss that — methods and sources, etc.”
I don’t think that’s going to cut it this time.
Before 2017 is out, we are going to have a brawl over FISA — the Foreign Intelligence Surveillance Act. Specifically, over FISA section 702, on which much of the sprawling American intelligence enterprise is now based. It will lapse if not reauthorized by Congress.
We ought to be headed into that brawl with a sense of how dangerous the world has become: Competitive great-power geopolitics has reemerged, yet international jihadism remains as threatening as ever.
Instead, foremost in our minds will be how readily the government’s awesome intelligence capabilities can be abused. That is the real significance of the controversy over Obama-administration spying on the Trump campaign and transition.
The scandal that CNN is hell-bent on ignoring brings into sharp relief the very abuses the media, echoing civil-liberties activists, have warned against for years: pretextual uses of intelligence-collection powers to spy on political opponents and dissenters. As a national-security conservative with no illusions about government, I’ve acknowledged these concerns. I’ve countered, though, that the powers are, yes, essential to national security. The abuse of power is thus a reason to get rid of the abuser, not the power.
In our modern political dysfunction, that seems impossible. Washington protects its own. No one gets fired anymore, let alone impeached. So just as we make war on “terror” because we don’t want to identify the enemy, we condemn “power” because we can’t bring ourselves to hold the rogue officials accountable.
Did the Obama administration have compelling foreign-intelligence reasons to monitor its political opponents? Or was Russian espionage mainly a cover for political spying? As I’ve said before, there is enough risk on both sides that I doubt we will get definitive answers to these questions. There is little doubt, however, that Republicans and Democrats will mutually find intelligence-collection power to be a convenient scapegoat. That’s where this is heading: the showdown over FISA reauthorization.
So can we trust the government with this power?
It is worth remembering that, before someone decided that the perilous complexities of the modern world left us with no choice but to trust the government, we built a governing system on the premise that it can’t be trusted.
Our supposedly self-determining society never conducted a referendum that officially transformed government from a necessary evil to a guardian angel. But while you weren’t looking, there does seem to have been a dramatic transformation of the Fourth Amendment.
Before someone decided that the perilous complexities of the modern world left us with no choice but to trust the government, we built a governing system on the premise that it can’t be trusted.
The amendment’s original meaning is simple enough: The government is not permitted to seize your most personal information — that yielded by searching your home, your person, your papers, or your effects — in the absence of permission from a judge. The idea is that the government’s own say-so cannot be trusted. Consequently, we don’t let it knock down your door unless its agents show probable cause that you have committed some wrong. That showing must satisfy a court — the forum in which the citizen is protected from government overreach. Only if the judge grants a warrant may the government search and seize.
Flash-forward a couple of centuries. The Fourth Amendment’s words are still the same, but the paradigm has shifted. Now we permit the government to seize first and search later. That is, we let government intelligence agents obtain evidence without cause. The caveat is that they will just hold it in a database, they won’t analyze it unless and until there is cause. The courts no longer determine whether the government may obtain the evidence in the first place; they merely endorse and kinda-sorta police the “seize now, search later” arrangement — under which the government is granted such broad discretion to analyze what it has obtained that the judicial protection seems illusory.
I don’t mean to make this sound like a scam. There is a legal rationale for it. The principal targets of government foreign-intelligence operations are aliens outside the U.S. — i.e., agents of foreign powers who could detrimentally affect American interests, and who are located outside the jurisdiction of American courts. They are not entitled to American legal protection at all, so the courts should not be involved — to say nothing of the fact that the judiciary, for all its legal acumen, is not institutionally competent to oversee intelligence matters.
Yet modern communications technology renders it inevitable that intelligence-collection efforts, even as they target foreigners, will capture private communications involving Americans. So the courts have to be involved. Still, this involvement does not mean they are any more competent to oversee intelligence matters. And the effort to safeguard Americans inevitably benefits foreign targets of intelligence collection — often, our enemies.
So how have we resolved these tensions? We let the courts oversee foreign-intelligence collection so Americans will have some ostensible protections; but we don’t let the courts be much more than a rubber stamp, because we know they really shouldn’t be involved in foreign-intelligence matters — and because we don’t want to turn our own judiciary into our enemies’ shield.
It is a delicate balance. It is also a balance that can be unbalanced in a hurry, because it has more to do with shifting political winds than with enduring legal norms.
After all, we’ve departed from our legal norms: We allow the government to seize our information without cause and trust that they will never look at what we’ve allowed them to retain unless some really good reason — some national-security reason — triggers a need to pluck us out of the database and investigate.
And . . . because intelligence involves secrets and sources and life and death, we’ve accepted that the government cannot tell us its reasons for investigating. We trust that when the government tells us it is protecting national security, it is not actually scheming to spy on the incumbent administration’s political opponents . . . and on us.
But can we trust the government? Whether we are inclined to do so depends on what is making us feel most vulnerable at the moment: foreign threats or rogue officials. If I had to bet right now, I’d say FISA is in trouble because of the rogue officials . . . and we’re in trouble because the foreign threats are not going away.