The House of Representatives voted Thursday to renew Section 702 of the Foreign Intelligence Surveillance Act this week. Prior to the vote, the president found out what the Foreign Intelligence Surveillance Act is, on Fox and Friends.
After watching this segment, the president tweeted that the act may have been used to “badly surveil and abuse” his presidential campaign:
This is the opposite of what Republican party leaders wanted to hear, as well as the opposite of the official White House position on Section 702. After lengthy conversations with House Speaker Paul Ryan and White House Chief of Staff John Kelly, who were enlisted to explain Trump’s position to him, the president walked back his original tweet:
The FISA package, which still needs to pass the Senate, renews Section 702 of the law, which gives the National Security Agency broad authority to spy on private citizens. The intelligence community and its allies would certainly like us to think that FISA is limited to surveilling “foreign bad guys on foreign land.” But, as we’ve seen in the past, spy agencies have used FISA not as a scalpel, but as a battering ram.
Section 702 indisputably gives intelligence agencies authority to scrape American citizens’ private information on a massive scale. As the ACLU says:
The government asserts that it has a right to search through data collected under Section 702 for information about Americans — whom the government is not supposed to target under Section 702 — without a warrant. To justify these “backdoor searches,” it can simply claim that it is seeking “foreign intelligence” or evidence of a crime. The FBI routinely searches through Section 702 information in cases unrelated to national security or where they may not even have the facts necessary to open a criminal investigation.
Data privacy has a tendency to make strange bedfellows of politicians—the primary example being Rand Paul and Ron Wyden. What other issue would unite such disparate groups as the American Civil Liberties Union, FreedomWorks, Indivisible, Gun Owners of America, the NAACP, the House Progressive Caucus and the House Freedom Caucus?
It is that tendency that led some to hope that the expiration of 702 would lead to meaningful reform of its use. There was reason to be optimistic. A meaningful number of both Democrats and Republicans came out against the FISA reauthorization. Rep. Justin Amash (R-MI) cosponsored an amendment to the bill with Rep. Zoe Lofgren (D-CA) that would have required the FBI to obtain a warrant before accessing and reading NSA-collected data on American citizens. But the House voted down the measure on Thursday, 182-233. (Sen. Rand Paul has vowed to filibuster the Section 702 if and when it comes up for a vote in the Senate.)
The problem is, unchecked surveillance also has a bipartisan constituency in its favor. After Trump’s first tweet went up, James Comey, the former FBI director, fired by the president for showing him insufficient loyalty, and a darling of #Resistance Twitter, called Section 702 a “vital and carefully overseen tool”:
Other nominally anti-Trump figures weighed in. Susan Hennessey, a former intelligence community lawyer and current Brookings fellow, didn’t mince words:
Sen. Mark Warner (D-VA), vice chairman of the Senate Intelligence Committee, went so far as to say that Trump’s criticism of FISA posed a threat to national security.
To Warner’s credit, the second sentence in that tweet is at least arguably true.
In the end, 55 Democrats in the House—including Minority Leader Nancy Pelosi and Democratic Whip Steny Hoyer—voted both against Amash and Lofgren’s amendment and for 702 reauthorization. Their votes were essential for the White House to achieve its preferred outcome.
It’s odd to see so many people who supposedly think the president is mentally unfit for office also argue that the government he oversees should be able to spy on its citizens with impunity. People who don’t trust the president not to interfere with criminal investigations into the conduct of his friends and associates, or who fear that he will weaponize federal law enforcement powers against his political enemies, also demand that his power to oversee the largest private information dragnet the world has ever known continue without basic Fourth Amendment restrictions on its use.
They will likely get their wish. And because of that, it will be very difficult to take them seriously when they complain about future abuses of power from the executive branch.