Congress Intelligence Surveillance & Privacy

The Merits of Supporting 702 Reauthorization (Despite Worries About Trump and the Rule of Law)

Jack Goldsmith, Susan Hennessey
Thursday, January 18, 2018, 9:20 AM

The Senate voted by a razor-thin margin Tuesday to invoke cloture on the FISA Amendments Reauthorization Act of 2017, which would reauthorize for six years Section 702 of the Foreign Intelligence Surveillance Act. The bill includes some significant changes to 702, though the reforms are substantially more modest than those sought by privacy advocates.

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The Senate voted by a razor-thin margin Tuesday to invoke cloture on the FISA Amendments Reauthorization Act of 2017, which would reauthorize for six years Section 702 of the Foreign Intelligence Surveillance Act. The bill includes some significant changes to 702, though the reforms are substantially more modest than those sought by privacy advocates. The House approved its version last week. A final Senate vote is scheduled for Thursday; the bill is expected to pass handily.

As Lawfare readers know, Section 702 authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. It does not permit the intelligence community to target a U.S. person anywhere in the world. But it does permit incidental collection on U.S. persons, subject to strict rules about minimization and use. (A bit more on this below.) Intelligence officials from the Obama administration and the Trump administration have asserted, as FBI Director Christopher Wray recently reiterated, that Section 702 is “one of the most valuable tools that we have in our toolbox to keep America safe.”

As the reauthorization of Section 702 has been considered, a meme has circulated suggesting that there is a tension, or contradiction, or worse, between supporting 702 reauthorization and worrying about or criticizing President Trump’s commitment to the rule of law. Glenn Greenwald has been pounding this point on Twitter, and the Intercept has published at least two articles in recent days criticizing Democrats who (as the headline of one Greenwald piece says) “denounce Trump as a lawless, treasonous authoritarian” but voted to give Trump “vast warrantless spying powers.” Many others have voiced similar points.

We do not believe there is any paradox when Democrats Nancy Pelosi and Adam Schiff, two House members Greenwald calls out by name, or Democrats in the Senate, or other individuals (including us) both support 702 reauthorization and oppose Trump’s lawless or norm-breaking tendencies. What others see as a paradox, we see as a ringing endorsement of the value of 702 and the rigor of the constraints on the program.

No member of Congress has been more critical of President Trump’s rule-of-law difficulties than Schiff. He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be critical of intelligence community practices when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is. He and the other Democrats who support reauthorization, and the many Republicans who worry a lot about President Trump yet support reauthorization, have a high degree of confidence that the National Security Agency and the U.S. intelligence community more broadly cannot and will not abuse the 702 tool even if they harbor concerns that Trump might desire to do so. They know that 702 is deeply embedded in a reticulate legal system run mostly by career public servants and supervised by all three branches of government, including numerous agencies in the executive branch, the congressional intelligence committees and the life-tenured members of the FISA court. In short, the answer to Greenwald’s puzzle about Trump critics voting for 702 reauthorization is that the NSA and FBI are remarkably immune from inappropriate presidential meddling.

More broadly, one of the underappreciated developments in the post-Snowden-revelations era is the absence of credible allegations of political or venal use of 702 authorities. In essence, the public evidence confirms that the problems that used to bedevil secret electronic surveillance through the Hoover/Nixon era—namely, senior political figures deploying intelligence agencies and tools for inappropriate, abusive political purposes—have been resolved by a robust legal regime of oversight and reporting. When Sen. Elizabeth Warren points to the surveillance abuses directed at Martin Luther King Jr. to argue against 702, she actually highlights the opposite point: the massive transparency, both voluntary and involuntary, over the past few years about how Section 702 operates shows that it has not been abused for domestic political spying and implies that the 40 years of post-Hoover legal reforms are largely a success (though not without hiccups). The fact that President Trump has not focused his abusive energies on intelligence collection is a testament to the efficacy of the legal and cultural constraints on electronic surveillance. Instead, Trump has, as our colleague Benjamin Wittes predicted long ago, focused those energies on trying to manipulate Justice Department law enforcement practices, where the fabric of regulation guaranteeing independence from political manipulation is much less dense.

We acknowledge that the program has raised hard legal questions as well as difficult compliance issues, primarily involving “abouts” collection. But these problems were identified by the system itself, long before the issues became public, and the practices were fixed or terminated. In addition, over the past year, concerns—real and imagined—have arisen regarding the potential misuse of U.S. persons information obtained in foreign surveillance. Setting aside the president’s allegations about Trump Tower wiretapping and Rep. Devin Nunes’s “unmasking” scandal, there have been a number of serious leaks regarding U.S. persons information. It is far from clear, however, that any of these leaks concerned information collected by Section 702 specifically, as opposed to ordinary FISA processes or other forms of collection.

Nevertheless, even in our world of regular leaks of classified information, those leaks represent the breaking of taboos—about leaking FISA information about a U.S. person and doing so for political purposes—that, as we both have written, are profoundly troubling. We suspect that many who support those leaks in the immediate context may soon come to regret them since the norms that were broken serve important values and may be hard to restore. Those emergence of those leaks may well call for increased protection in the handling of classified materials, but they do not go to the legal or operational justifications for foreign intelligence collection in the first place. It is reasonable to argue that at some point, if the government cannot be trusted to responsibly prevent privacy-harming leaks of the fruits of incidental collection, then greater limits should be placed on such collection. This is one of the serious dangers of the U.S. persons leaks and should be weighed in the balance. But right now, and especially in light of the enormous overall value of the 702 program, we are persuaded by the counterargument that has prevailed—namely, that the leaks can and should be addressed as a distinct concern.

Skirmishes over 702 reauthorization revealed yet another way in which “the system” is working well: the 702 sunset clause. The five-year sunset clause in the 2012 authorization of 702 is what led to Section 702 dominating the surveillance conversation for the past year and a half. It sparked numerous congressional hearings, sustained executive-branch engagement with Congress and civil society, and a wide array of commentary. It also spurred a number of legislative proposals in Congress’s intelligence and judiciary committees that ranged from permanently reauthorizing the program in its current form to radically scaling back collection and use. This robust democratic deliberation produced important alterations to the program and a contemporary democratic reaffirmation of the program’s value and legitimacy. There are always potential drawbacks to sunsets, which sometimes force debate on the wrong issues and, because of various procedural hurdles in Congress, can end in lapsed authorization even when reauthorization has majority support. But the process worked well here. And the reauthorization that we expect will pass Thursday itself sunsets on Dec. 31, 2023, when the entire matter will be revisited in full again.

Another testament to the value and integrity of Section 702 is that the democratic process worked well despite irresponsible interference from the top of the executive branch. Ordinarily, the president is a crucial champion of surveillance authorities. President Trump, however, offered gift after gift to Section 702 opponents. In promulgating falsehoods about how the program worked and about how his predecessors used surveillance tools more generally, and in continually insulting and undermining the intelligence community, Trump harmed his national security team’s reauthorization efforts. His unpresidential behavior culminated in a rogue tweet last week the morning the House was set to take up the bill, setting his aides and members of Congress scrambling to do damage control and to explain to the commander in chief that he was tweeting against his own administration’s position. In the past, passing major surveillance legislation has required an all-executive push. The fact that it managed to succeed this time, despite the president effectively pushing in the other direction, says something about the intensity and unity of the belief across the executive branch about the program’s value and legitimacy.

And of course no small degree of credit should also go to the 19 Democratic senators who voted in favor of cloture and their 65 Democratic colleagues in the House who voted to pass the underlying bill last week. The failure of 702 would have been an enormous black eye to the White House and to the Republican Party more generally. Opposing 702 held the promise of establishing privacy and civil liberties credentials for progressive politicians up for re-election or who harbor 2020 presidential ambitions. The attractions of opposing 702 were especially strong when the issue was a cloture vote, for in that context opponents can couch their opposition in a desire simply to see more debate and thus disavow the consequences of the underlying legislation lapsing. In this political environment, and against the background of this presidency, a vote by a Democrat in support of 702 reauthorization is especially brave and a testament to the powerful merits of Section 702.

Notably, a similar decision was once faced by Barack Obama. In July 2008, a little more than a month after securing the Democratic presidential nomination, then-Sen. Obama voted in favor of the FISA Amendments Act that created Section 702. He did so over a great deal of Democratic opposition, much of which was couched in fears regarding potential abuses by the George W. Bush administration. At the time Obama acknowledged that the legislation, 702 included, wasn’t perfect, but said:

The surveillance program is actually one that I believe is necessary for our national security. So I had to balance or weigh voting against a program that I think that we need — and that had been created so that your privacies were protected — or create a situation in which we didn't have the program in place.

At the time, former New Mexico governor Bill Richardson elaborated more on Obama’s endorsement of the bill, despite his objection to earlier versions. He noted:

What changed is that the bill got better and more acceptable to Sen. Obama — the judicial oversight, the fact that the president can't unilaterally say he's going to eavesdrop on citizens. ... There are a lot of safeguards in the bill that weren't there before.

The choice Obama faced in 2008 is, essentially, the same choice that Congress faces today, a decade later. Section 702 has survived the test of time by both keeping Americans safe and imposing significant safeguards to protect their privacy and civil liberties. It’s exactly the kind of program that you’d want to have if you worry about national security and a president who might want to abuse intelligence collection.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.

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