The House Judiciary Committee’s Bipartisan Disaster

The House of Representatives is considering a pair of bills to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, one reported out of by the House Intelligence Committee, the other reported out by the House Judiciary Committee. Monday evening, the House Rules Committee failed to adopt a procedure by which either bill would be taken up on the floor today, so the exact time and manner of considering 702 reauthorization remains to be seen.   

My colleagues Preston Marquis and Molly E. Reynolds in an article yesterday described the bills with admirable detachment and neutrality. 

In this article, by contrast, I wish to slam a dyspeptic fist on the table a bit about one of the two bills—to wit, the House Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act. The bill was reported out of committee on a massively bipartisan 35-to-2 vote and reflects an agreement between committee Chairman Jim Jordan and Ranking Member Jerry Nadler. 

In most cases, I would applaud such apparently wide bipartisan agreement on a fiercely contested policy matter. Not this time. The Judiciary Committee bill would be a disaster for the intelligence community’s effectiveness on everything from counterterrorism to counterespionage against major near-peer adversary powers like Russia and China. 

To the committee’s credit, this wolf doesn’t come in sheep’s clothing. As Justice Antonin Scalia might say, it comes as a wolf. 

The press release accompanying the bill barely bothers to mention that it would reauthorize Section 702, stating that it “reauthorizes Section 702 of the Foreign Intelligence Surveillance Act (FISA) for three years with significant reforms, requires all intelligence agencies and the FBI to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC) before conducting any query of a U.S. person, brings much-needed reforms to the FISC, increases transparency, and ensures that those who violate the civil liberties of Americans will be held accountable for their actions.” 

If this summary sounds like the Judiciary Committee was more concerned with reining in Section 702 than it was with reauthorizing it, that’s because Jordan and Nadler and their colleagues are not hiding the ball here. 

While their bill would reauthorize 702 in a formal sense, it amounts to an effective repeal of its functional utility—at least to the extent that a major part of the purpose of the statute is to allow the intelligence community to find out whom intelligence targets overseas are contacting domestically. 

The bill accomplishes this with several distinct provisions, some of which frontally attack key aspects of existing Section 702 and some of which weirdly go after other authorities. Here are some of the most damaging provisions:

• The bill would generally prohibit Section 702 collection against overseas intelligence targets like spies, terrorists, and foreign government officials if “a significant purpose” of the collection is to obtain communications between the targets and any U.S. persons. You read that right. The bill—absent an emergency—would prohibit targeting legitimate foreign intelligence actors overseas who are not U.S. nationals to see if they are talking to U.S. persons. Want to check whether Hamas’s leadership is talking to pro-Hamas activists here? Not under this law. Want to check whether Putin’s thugs are calling their contacts in the United States? No can do. Want to collect on Chinese efforts to create police outposts in the United States to terrorize Chinese citizens by spying on the Chinese intel officers responsible for such initiatives and see whom they call domestically? Fuggedaboudit. As Alex Joel and Bob Litt explain, this provision is said to prevent what civil libertarians call “reverse targeting”—a practice that is already forbidden. But it would do a lot more than that. It would actually prevent useful targeting (see Section 23).

• The bill would not only create a warrant requirement for queries of U.S. person data collected under 702 but also would prohibit the use of material collected under 702 in criminal trials in a wide variety of major criminal matters. In other words, it doesn’t just prevent acquisition of communications against overseas targets by officials intending to see whom those targets might contact in the United States; it also requires a warrant to then search any data those officials might collect accidentally against some other target—and except in a limited range of circumstances, it makes sure they can’t use that material as evidence in court against anyone (see Sections 2(b) and 3).

• Perhaps most bizarrely, the bill would bar the intelligence community from buying certain information about U.S. persons from data brokers that is readily and lawfully purchasable by foreign intelligence services, news organizations, and advertising entities. One might term this unilateral disarmament, since it does exactly nothing to protect the privacy of Americans, whose data is still available for purchase by anyone except their own government (see Sections 18-21).

I could go on; the bill has many other problems. It gums up non-702 FISA proceedings with amicus procedures, for example, and in what I can only assume was a drafting error, it appears even to require warrants for queries involving non-U.S. person intelligence targets overseas under some circumstances.

But the broad point is that this is not a reauthorization. It is a functional repeal of 702 as an authority intended to enable the intelligence community to examine the so-called seam between overseas intelligence targets and the people they contact in the homeland.

The other bill, the House Intelligence Committee bill, has problems of its own. But they are the kind of problems a conference committee can iron out when the bill gets reconciled with whatever the Senate ends up passing. 

This bill is something different, something revolutionary—and frankly a bit crazy in a world in which all sorts of bad actors are busily bad acting against the United States.

Members should not vote for it imagining that they are protecting the privacy of Americans. They should vote for it only if they really want to ignore the hard-learned lessons of Sept. 11 about the need to know how foreign actors are seeking to project power in the United States. 

I can’t imagine why a patriotic member of Congress interested in protecting America and Americans would actually want to do that.