The FBI has conducted itself abysmally, and therefore Section 702 has got to go.
That’s the logic of opponents of reauthorizing the long-standing statutory provision that governs intelligence collection targeting non-Americans outside the United States.
We do not endow federal agents with surveillance powers because they are honorable people who scrupulously follow the letter of the law, though. We grant these powers — the capacity to discover and thwart the machinations of hostile foreign regimes and terrorist organizations — only because they are necessary to protect the United States.
Section 702 was initially enacted in 2008 as a legislative compromise that brought President George W. Bush’s controversial post-9/11 warrantless surveillance program under the 1978 Foreign Intelligence Surveillance Act (that law that originally put domestic intelligence surveillance under the purview of the Foreign Intelligence Surveillance Court).
Intelligence collection is a political responsibility of the government and an executive function that should be aggressively monitored by Congress. It was already clear by 2008 that the judiciary, the nonpolitical branch with no responsibility for national security and no institutional competence in intelligence operations, had limited capacity to conduct effective oversight of the FBI’s domestic monitoring of foreign agents. But Section 702 exacerbated this problem by enmeshing the Foreign Intelligence Surveillance Court in overseas intelligence.
Predictably, the FBI has had noncompliance problems, about which the FISC can do little but grouse while Congress fails in its oversight function.
It’s worth noting that the NSA, not the FBI, is principally responsible for overseas intelligence collection, and the FISC’s annual sign-off on it — part of that 2008 deal — is more a ritual than a true safeguard. Regardless, Section 702 involves monitoring people who have no constitutional rights, in countries where the Fourth Amendment does not apply and the U.S. judicial writ does not run.
It’s usually the CIA that requests the collection from the NSA. In its own investigations, the FBI, too, will sometimes request the counterintelligence monitoring of foreign agents. This, though, accounts for only about 3 percent of Section 702 targeting. Again, under the statute, even that targeting must focus on non-Americans outside the U.S. The so-called reverse targeting that 702 critics complain about — the notion that our spy agencies pretextually monitor foreigners because they are communicating with Americans who are the “real” targets — is already illegal under the statute.
Although the controversy on Capitol Hill involves just a thin slice of foreign intelligence collection, all such collection would be shut down if Section 702 is not reauthorized at the end of this month. Such a shutdown would be reckless at any point, but it should be inconceivable amid war in Europe and the Middle East, the rising threat of China, the continued threat of jihadist terror, and the increasing regularity of cyberattacks against American governmental and corporate entities.
Given the fraught politics of its original enactment, Section 702 has a sunset provision. It has always been renewed by substantial bipartisan majorities. Yet there has always been a cadre of opponents, mainly libertarians and pro-Islamist progressives, who portray as “spying on Americans” any surveillance that incidentally captures communications and information about Americans — which all surveillance necessarily does, whether under the criminal law or FISA, no matter how carefully overseen by courts. It is not possible to monitor suspects without observing their contacts with non-suspects.
Two things are different in this go-round: the FBI’s alarming record of misconduct and noncompliance with FISA rules, the most egregious of which relates to Russiagate and has nothing to do with Section 702; and pro-Trump Republicans who see the Section 702 deadline as an opportunity to build on their rhetoric that the deep state has a vendetta against Trump and his supporters.
It cannot be gainsaid that the FBI has brought these problems on itself. While not as blatant as its flouting of domestic FISA rules, its noncompliance with Section 702 “minimization” standards (which regulate when it can query the government’s foreign-intelligence database, including for information about Americans) has been too frequent. Nevertheless, the FISC and internal Justice Department audits indicate that reforms instituted by FBI director Christopher Wray have now driven the error rate close to zero.
Opponents of a “clean” reauthorization propose that the FBI be required to obtain a judicial warrant anytime agents want to tap the database for information about Americans. That would be very unwise.
Information does not get into the 702 database absent a judicial finding that its purpose is the collection of foreign intelligence. Most of the time when the FBI needs to tap it for communications or information involving Americans, the circumstances are exigent and the purpose is to protect those and other Americans — who may be the targets of, for example, cyber or terror threats. In other instances, the FBI queries the database to identify people in the United States who may be working as agents of foreign powers (such as, say, terrorists or spies who may be American citizens or permanent-resident aliens); the perusal of legally obtained foreign intelligence to protect the nation should not require a judicial sign-off — certainly not beyond the one that allowed its collection in the first place.
Finally, if the FBI seeks to query the database for criminal-investigative purpose rather than foreign intelligence — the only situation in which a warrant should be required, as it is in the criminal law — Section 702 already effectively requires a warrant. The FBI must apply to the FISC and show probable cause that the query will result in evidence of a crime, and the FISC must issue an order so finding.
An additional warrant requirement is not only constitutionally unnecessary, it would be counterproductive from a national-security perspective. If 9/11 taught us anything, it should be that the FBI and other agencies must rapidly access and share any threat information in their lawful possession. Prior to 9/11, the institutional blinding of our agencies (via Justice Department internal guidelines, known as “the wall”) prevented intelligence agents and law-enforcement investigators from sharing intelligence, resulting in lost opportunities to thwart the attacks that killed nearly 3,000 Americans.
It would certainly make sense for Congress to enact Wray’s reforms into statutory law. Most effective, however, would be increasing Congress’s own capacity for aggressive oversight of FBI surveillance. Increased judicial oversight would be a dual setback — it would hamper legitimate foreign counterintelligence while providing only a mirage of oversight.
Meanwhile, Section 702 must be reauthorized. It is not an ideal framework, but it’s the one we have, and we cannot afford to shut it down in a dangerous world until we have something better.