Latest Section 702 Compromise

As James reports, it looks like Congress is inching its way toward a short-leash reauthorization of Section 702, the government’s statutory power to conduct surveillance targeting non-Americans outside the United States. Congress added Section 702 to FISA (the Foreign Intelligence Surveillance Act) during the post-9/11 era — the provision was a compromise codification of President George W. Bush’s warrantless surveillance program.

We have an editorial on Section 702 today, and I’ve also argued in an earlier post that it would be irresponsible to let it lapse — at any time, but especially in light of our current threat environment.

House Speaker Mike Johnson (R., La.), who has been advocating reauthorization, accommodated Republican opposition to that move by cutting the sunset term from five years to two years. That seems to have done the trick. The bill passed in the House, 273–147 — i.e., despite continuing opposition from 88 Republicans, joined by 59 Democrats. The Senate is likely to pass the bill, and President Biden to sign it.

Absent an enactment of reauthorization legislation, statutory surveillance authority would expire a week from today (i.e., on April 19). That would not end the foreign intelligence operations that are currently authorized: the Foreign Intelligence Surveillance Court (FISC) just approved those recently, the relevant court orders run for a year, and Section 702 allows court-approved operations to continue even if the underlying statute lapses.

There should be no sunset term. Congress does not typically sunset essential government powers necessary to national defense; it would make no more sense to nullify our intelligence agencies’ capacity to monitor foreign threats to the United States than it would to disarm our military services. Intelligence is a key weapon against hostile foreign regimes and terrorist organizations. Nevertheless, it has been the convention since Section 702 was enacted to sunset it every five years or so. It is unfortunate that the sunset had to be slashed to two years to get reauthorization over the finish line, but better that than a lapse. When our enemies are already attacking us, it is provocative to convey to them that we are not serious about protecting ourselves.

I generally refer to Section 702 as the government’s statutory authority to conduct surveillance. As a matter of constitutional law, I believe Article II’s executive power, including the commander-in-chief power, would allow the president to monitor non-Americans outside the United States regardless of whether there was statutory authority to do so. For example, in United States v. United States District Court (the so-called Keith case in 1972), the Supreme Court took pains to distinguish “the President’s surveillance power with respect to activities of foreign powers, within or without this country,” from targeted surveillance of Americans inside the United States — holding that the latter require compliance with the Fourth Amendment’s warrant requirement. Non-Americans outside the United States do not have Fourth Amendment protection; Americans who contact non-Americans outside the United States — where American law does not control, and where foreign officials could be monitoring communications — have no reasonable expectation of privacy.

To be sure, the situation is complicated by the facts that (a) modern telecommunications technology now runs digital communications through hubs in America territory (i.e., within the jurisdiction of our courts) even if the participants in an electronic communication are outside the United States; and (b) Congress has statutorily imposed court supervision (however ineffective) over the executive collection of foreign intelligence outside the United States since 2008 (and inside the United States since 1978). I believe, nevertheless, that if two non-Americans are communicating while physically situated outside the United States, it’s a foreign communication regardless of how the technology routes it or enables opportunities to intercept it. And if the president has constitutional power to conduct foreign-surveillance operations outside the United States, Congress cannot reduce or nullify that power by statute — even if the statute has been on the books for many years, and even if the executive branch has been complying with it.

Would a president have the temerity to order intelligence agencies to continue intelligence-collection operations against foreign powers suspected of plotting harm to our country even if Congress allowed the statutory surveillance authority — Section 702 — to lapse? Would the intelligence agencies follow such orders? Those are tough questions. I imagine it would depend on who the president was and what the threat environment looked like. I sure hope we never have to find out.

FISA’s legal oversight regime for intelligence collection is ill-advised. The judiciary — the nonpolitical branch — has no business being enmeshed in the classically political function of determining how to respond to foreign threats to the United States. That is the duty of the branches politically accountable to the American people whose lives are at stake — the president and Congress. Moreover, as an institutional and practical matter, the courts — including the specialized FISC — lack the tools to effectively oversee the FBI and other intelligence agencies.

Courts are supposed to be referees, not advocates or investigators; they are designed to rely on an adversarial process to challenge the government’s representations, and such a process is not practicable in classified, ex parte intelligence matters. The courts’ limited role in national security should be to judge claims by affected parties that the executive’s intelligence-gathering violated some cognizable right; it compromises the judiciary’s objectivity if it has participated in the intelligence-gathering process.

This doesn’t mean the intelligence agencies don’t need oversight. To the contrary, they need searching, effective oversight of the type courts are not equipped to do.

Such oversight has to come from Congress. It should staff up oversight bodies whose principal responsibility is to monitor the intelligence agencies’ justification for surveillance operations. Congress can compel the production of relevant intelligence reporting, hire investigators with the necessary security experience and clearances to analyze them, and respond if the agencies and their executive-branch superiors prove uncooperative — including by holding officials accountable and cutting agency budgets.

Ergo, the only upside I can see in the controversy over reauthorization and the two-year sunset is that members of Congress, such as Representative Chip Roy (R., Texas), used the leverage to try to improve oversight. As James’s report notes, the FBI will be required to provide quarterly reports on the number of Americans as to whom it queries the database. This is better than a warrant requirement — it doesn’t slow down vital intelligence operations, and it enables Congress to do follow-up investigation that the FISC is not equipped to do. It doesn’t overhaul the misconceived process, but it’s a step in the right direction.