There are a lot of proposals in the air for reforming section 702 of the Foreign Intelligence Surveillance Act (FISA), the critical intelligence collection authority set to expire at the end of this year. Section 702 allows U.S. intelligence agencies to target foreign terrorists and hostile nations like Communist China by intercepting communications that are passing through the United States. Americans can’t be the targets of this surveillance, but intelligence agencies can run searches for information about Americans in the databases of intercepted communications. Much of the time, NSA or FBI search for the names of U.S. companies or their IP addresses in the databases, looking for potential U.S. victims of cyberattacks.
Since the enactment of section 702, left-wing activists have tried to force intelligence agencies to obtain a court-approved warrant before running a query in the databases.
A warrant requirement is a bad idea because it would make the 702 databases almost impossible to access, even when it’s vital to obtain the information. And the precedent that the government needs a warrant to look through lawfully collected information would end up crippling the U.S. intelligence community.
But a warrant requirement is a particularly bad idea for conservatives concerned about the weaponization of government against political opponents. That’s because a warrant requirement would rely on the same broken court process that led to the abuse of FISA in the past.
Take, for example, the Carter Page FISA surveillance in 2016. Intercept orders on Page were approved four separate times by four separate FISA court judges relying on FBI facts from the phony Steele dossier. The final two approvals by the FISA court were in April and June 2017. The flimsiness of the FBI’s case had become obvious by then, indeed so obvious that Justice Department later rescinded its own filings. You didn’t need to be a judge with access to top secret information to have questions about the surveillance of Page. You just had to read the newspapers. Yet as far as we can see, not one of the four different judges who reviewed the Page applications had any questions for the FBI. One of the court’s staff clerks apparently asked a few routine questions when the first application was filed. But there isn’t a hint in the reports of the DOJ inspector general, Robert Mueller, or John Durham that the FISA court raised any doubts about the FBI’s case—not even in the spring of 2017, well after the credibility of the Steele dossier had begun its long public meltdown.
The lack of curiosity displayed by the FISA court in the Carter Page case casts doubt on the notion that expanded judicial review of section 702 searches will protect against potential abuses.
Conservatives have raised understandable concerns about partisan bias in national security surveillance. But the solution shouldn’t be a “reform” that hurts national security without stopping partisan abuse, especially because there are better ways to protect civil liberties. For instance, Congress could require that the intelligence community identify sensitive investigations where partisan abuse of Americans is a real risk and impose new safeguards, perhaps requiring that the FISA court appoint an amicus curiae, or a “friend of the court,” to challenge the government’s case in all such cases. Or, as we’ve written before, Congress could impose stiffer penalties and mandatory non-partisan investigations when intelligence leaks are aimed at domestic political targets and tighter controls on lawful intercepts in politically sensitive investigations.
There are also ways to improve the FISA process without courting an intelligence failure. The same FISA court judge who initially approves surveillance should also consider any extension requests, avoiding the tendency of judges to defer to prior approvals without familiarizing themselves with facts that can often be complex. On top of those changes, Congress could also repeal the specific prong of FISA that was used to target Carter Page, an infrequently used provision that is particularly susceptible to abuse.
To prevent improper FBI searches, Congress should not impose a misguided warrant requirement. Reforms should deal with the core civil liberties concerns that originally motivated FISA—the possibility of the government targeting its political opposition—and not expand the power of judges who failed to find partisan abuse when it was staring them in the face.
Stewart Baker, a Washington lawyer, has held multiple national security positions in government, including general counsel of the National Security Agency in 1992-94. Michael Ellis has served in senior positions in Congress, the White House, and the Intelligence Community, including as Senior Director for Intelligence Programs on the National Security Council staff.