Republicans Are Blocking Renewal of Commonsense Anti-Terrorism Tools

Our surveillance laws need revision, but this is not the way to do it.

I   wonder if Congressman Andy Biggs (R., Ariz.) has ever heard of Sayyid Nosair. There was a time not that long ago when Nosair was something of a household name, the kind that the Arizona Republican, a strong conservative who cares a great deal about our national security, would know.

Time flies, though, and memories fade. It’s been 30 years since Nosair, a naturalized American citizen and a hardened jihadist, murdered Jewish Defense League founder Meir Kahane in one of New York City’s most notorious late-20th-century homicides. It has been 25 years since I led a team of prosecutors who convicted Nosair of conducting a terrorist war against the United States — a war waged by a foreign terrorist organization that included the 1993 World Trade Center bombing, which was plotted in his upstate New York prison cell.

The question of Representative Biggs’s familiarity with Nosair — to say nothing of many other historical instances of Americans collaborating with foreign powers against American interests — suggested itself when I watched him get interviewed on Fox News Thursday morning (see here, about three minutes in). Biggs was asked to weigh in on the GOP’s ongoing intramural skirmish over what is being called “FISA reform,” but, in actuality, has very little to do with that important subject — at least, not directly.

Biggs reminded Fox’s Ed Henry that “the F in FISA stands for ‘foreign,’” his ill-informed point being that the Foreign Intelligence Surveillance Act is supposed to be about the surveillance of foreigners, not Americans. Therefore, the argument continued, we need to reform FISA so it is limited to non-Americans; otherwise, the FBI could once again pretextually use it to spy on President Trump, or on another American political campaign, or on the rest of us.

This contention is bogus, through and through. Indeed, not long ago — in the years after the 9/11 atrocities, when the GOP prioritized national security and belittled Clinton Democrats for treating international terrorism as if it were a mere crime problem — Republican congressmen were usually found shredding such nonsense, not positing it.

There is much more to be said on the subject of FISA reform. For now, however, I’ll confine myself to three points about the pressing matter, which involves reauthorizing three sensible anti-terrorism measures, not the much-needed overhaul of FISA.

First, the foreign in FISA has never remotely meant that only aliens could be subjected to surveillance. The foreign refers to foreign powers — mainly, hostile nations and foreign terrorist organizations that threaten American security and interests. It should not need explaining that, while most agents of foreign powers are aliens, a goodly number are traitorous American citizens . . . just like Sayyid Nosair. In fact, there is no more insidious clandestine threat than an American who works on behalf of a foreign power against U.S. interests — an American who enjoys all the privileges and immunities of citizenship, including the undeniable right to be present in this country and to be presumed innocent.

The government need not show that a person is a foreigner to target that person for FISA surveillance. The government must show that there is probable cause to believe the person — whether alien or American — is acting as a clandestine foreign agent. FISA’s standards for demonstrating that an American citizen is acting as a foreign agent are more demanding than those for aliens, which is as it should be. But it is fatuous to suggest that Americans are, or should be, immune from coverage if they are working against America. The fact that the FBI abused FISA surveillance in a case that involved Americans (viz., the Trump campaign officials risibly depicted as agents of Russia) does not mean that Americans never collude with foreign powers, or that FISA is not legitimately applied to such Americans.

Second, the anti-terrorism measures now at issue have nothing to do with the abuse of FISA uncovered in congressional and inspector-general investigations of the FBI’s Trump-Russia probe. Over the years, these three provisions, along with much else, have been grouped under the general heading of “FISA.” But they are better known as PATRIOT Act provisions. With one caveat, they are so uncontroversial it is mind-boggling that Republicans are playing politics with them — Republicans, by the way, who do not win national elections unless they are seen as the adults in the room when it comes to our national security.

The measures at issue are: business records, roving wiretaps, and lone wolf. The “caveat” I just mentioned relates to business records. This provision, also known as Section 215, simply gives intelligence agents the same kind of power that criminal investigators have to compel production of documents. Yet, based on a strained interpretation of Section 215, the FISA court allowed the intelligence agencies to conduct bulk collection of telephone metadata (i.e., information about when a communication occurred and between whom, but not the substance of the communication).

As I’ve previously detailed, the government never gave a convincing explanation of why it was necessary to warehouse the telephone records of tens of millions of innocent people in order to analyze the statistically negligible communication patterns of terrorists. Consequently, the metadata program was substantially pared back in 2015. It is now unworkable and could be repealed without degrading our defenses.

There are some national-security officials who would like to maintain the legal authority for such a program but keep it dormant for now. But again, the government has failed to establish that the juice is worth the squeeze. Consequently, if there needs to be compromise, it should be a straightforward matter of repealing the metadata program in exchange for the swift renewal of the three PATRIOT Act provisions, which will otherwise sunset in a few weeks.

The business-records provision becomes unobjectionable once the metadata harvesting is barred.

The roving-wiretap law is a no-brainer. It essentially provides that if a terrorist switches communications devices to try to defeat surveillance, the government may continue monitoring — i.e., investigators need not go back to court to seek a new warrant every time a foreign agent starts using a new “burner” phone. Understand: The government still has to prove to the court, in the first instance, that the targeted person is a clandestine foreign agent; the roving tap merely means that the surveillance warrant is tied to the agent himself rather than to the (often easily disposable) communications device he is using.

Finally, the lone-wolf provision addresses what used to be known as the “Moussaoui problem” — named for Zacarias Moussaoui, one of the 9/11 plotters. Sometimes, at an early stage of their investigation, FBI agents will be able to prove that an operative is engaged in terrorist activities — e.g., buying explosives components, training to fly a plane (without seeming to be interested in how to land it) — but will not yet have good evidence connecting the operative to a known terrorist organization. The lone-wolf provision enables intelligence agents to monitor such a person while they continue investigating what foreign power, if any, is involved. And lone wolf applies only to foreigners. No American — not me, not members of Congress, not President Trump, not any “U.S. person” (i.e., a citizen or green-card holder) — is subject to lone-wolf surveillance.

The only thing that should be controversial about these three provisions is that Congress has made them subject to periodic renewal. What Congressman Biggs and other Republicans ought to be doing is working to remove the sunset provisions. If the point of these measures is to improve our security, why allow them to be used as leverage in a political dispute?

Which brings me to the third point. The FISA abuse that has been uncovered relates to the FBI and Justice Department’s presentation of misleading warrant applications to the FISA court. When government officials violate the rules, that is not a rules problem; it is an accountability problem. Any rules you make can be flouted by rogues; that doesn’t mean the rules are bad.

The reason we have national-security surveillance authorities is because the globe is chockablock with anti-American actors who mean us harm — including the rare, vile American who schemes with foreign powers to mass-murder Americans. We don’t want to be in this position; we have these powers because we need them in order to protect the United States.

When such powers get abused, the answer is not to repeal them or encumber them to the point where they become dead letters. The threats to the United States are not going away. The answer when powers are abused is to hold the abusers accountable.

To my mind, the whole FISA system needs rethinking — a subject that I’ve addressed in the new print edition of National Review, and that Rich Lowry and I discussed on the podcast this week. I would overhaul FISA and get the courts out of the foreign-intelligence business. National security against foreign threats is a classic political function, committed by the Constitution to the political branches. Congress should be aggressively monitoring the executive’s surveillance activities. The judiciary should go back to performing the critical judicial role of addressing claims that government officials have abused their powers; judges should not be put in the position of aiding and abetting in the abuse.

Even if you don’t agree with me, even if you believe FISA just needs tweaking and not scrapping, there are clearly sensible things that we could and should be doing to insulate our political campaigns from abusive intrusion by foreign-intelligence surveillance.

That said, it is recklessly irresponsible to hold national-security measures hostage to a remotely related political dispute. By all means, let’s debate FISA. And let’s press the government for answers on what’s being done to address the officials who abused their powers. But this is not the way to do it.

And do President Trump and his Republican congressional allies really think the path to victory in 2020 includes letting Joe Biden portray them as willing to compromise commonsense national-security measures?