It’s a shame representatives today don’t share Mr. Madison’s political sensitivity.
“But if we continue to postpone from time to time, and refuse to let the subject come into view, it may occasion suspicions, which, though not well founded, may tend to inflame or prejudice the public mind, against our decisions: they may think we are not sincere in our desire to incorporate such amendments in the constitution as will secure those rights, which they consider as not sufficiently guarded.”
This was James Madison, rightly concerned on June 8, 1789, that Congress had now twice decided to punt the discussion of the Bill of Rights to a later date. He fretted before the House of Representatives that Americans would mistakenly sense that Congress was insincere in its desire to secure their rights that they felt were insufficiently guarded without the addition of the constitutional amendments.
It’s a shame representatives today don’t share Mr. Madison’s political sensitivity. Democrats and stray Republicans are leveraging the impending expiration of Section 702 of the Foreign Intelligence Surveillance Act to strongarm Donald Trump into reversing Bill Pulte’s appointment to his post as acting Director for National Intelligence. Mr. Pulte is a terrible choice for the job, but it’s even worse politics to kill a crucial national security tool that could have been near-perfected with common-sense reform in order to advance a political aim.
Section 702 is a powerful provision in FISA that allows intelligence agencies to monitor communications and gather intelligence on foreign targets without obtaining a warrant. About 50 percent of intelligence reports are informed by the intelligence collected through Section 702. However, Americans who communicate with foreigners outside of the United States can have their communications and other information swept into a growing government database, which federal agents can then scrutinize without a warrant.
This incidental surveillance is a flagrant violation of the Fourth Amendment, attached to the core intelligence gathering function of Section 702 that is simply too important to national security and counterterrorism measures to lose. Reforming this rights-violating aspect of the section while preserving its function is therefore the only acceptable option.
Luckily, the solution is simple, and can be found in the very text of the Fourth Amendment: continue foreign surveillance, but require a warrant to examine an individual American’s information and communications that get snared in the database. Such measures have been proposed in bipartisan legislation efforts already.
It’s what makes the current political fight so frustrating, now that any tacit agreement on a way forward has imploded since House and Senate Democrats vowed to let Section 702 expire unless Trump reverses Pulte’s appointment.
The ferocity of the backlash was predictable, and Trump should have known that he’d be putting Section 702 at risk by installing Pulte to the acting director’s post. But for those rebelling in the House and Senate, sacrificing one of the strongest intelligence tools America has in its arsenal for the long shot that the historically obstinate President Trump will somehow change his mind on a personnel decision is unwise, downright foolish. He has shown no sign of doing so, so such a performance from congressional Democrats will likely extinguish America’s foreign intelligence capabilities, fail to secure any meaningful Fourth Amendment reform that would fix Section 702’s largest problem, and keep Pulte in his position.
Many years later, Mr. Madison’s worries remain well-founded.