Former attorneys for the National Security Agency and other parts of the federal intelligence community are busy warning members of Congress about the grave dangers of surveillance reform. Over the August recess they penned and spun pieces in the media that will give their lobbyists plenty of “leave-behinds” when they go from office to office on Capitol Hill.
Their message to members of Congress is that if they embrace surveillance reform they will be ideological dupes of the other party and become enablers of fentanyl trafficking. These tactics are as despicable as they are desperate.
What prompted the intelligence community, which usually strives to be invisible, to become so public and polemical? It is the pending expiration of Section 702 of the Foreign Intelligence Surveillance Act (FISA) by year’s end. Under Section 702 authority, the secret FISA court acquiesces in the warrantless surveillance of texts, emails, phone calls and other communications of millions of Americans. For once, Section 702’s coming expiration gives members of Congress leverage for common sense surveillance reforms to require warrants and end the practice of government agencies buying our most sensitive, personal digital data from data brokers.
Those proposals may strike you as a modest return to the American status quo. But the intelligence community’s response has been to generate end-of-the-world hysteria.
Rep. Andy Biggs (R-Ariz.) anticipated this earlier this year: “The FBI and federal intelligence agencies use scare tactics to convince Congress that these unchecked powers are the only method available to protect our nation from harm. Well, every American should be scared to know federal agents are spying on them, even if they have nothing to hide.”
As we go into the homestretch of the 702-reauthorization debate, the spokesmen for the intelligence community have honed their appeal to these two hot-button attacks.
First, they are trying to drive a wedge between the alliance of reform-minded conservatives and progressives that includes the current and recent chairmen of the House Judiciary Committee, Reps. Jim Jordan (R-Ohio) and Jerry Nadler (D-N.Y.), as well as Sens. Ron Wyden (D-Ore.) and Mike Lee (R-Utah), and progressive and conservative caucus leaders like Reps. Warren Davidson (R-Ohio) and Pramila Jayapal (D-Wash.). Former intelligence community lawyers Stewart Baker and Michael Ellis warn the conservatives in this coalition that “left-wing activists” are tricking them. To do what? To enforce the constitutional requirement for a probable cause warrant before government agents can riffle through American citizens’ personal communications and information.
What a radical notion!
Aimed at the left is recent, highly spun reporting in Politico that has all the earmarks of classic, intelligence community disinformation. It warns that this “highly unlikely” coalition is showing “cracks” over the “fixation” of “hard-right” conservatives. In both instances, the message is the same — don’t work with the other side of the aisle, or you’ll get right-wing or left-wing contamination. Here’s a reality check: We’re in constant touch with our esteemed former colleagues on both sides of the aisle and we see no such cracks. Nor is anyone donning a glove to shake a colleague’s hand.
What we see instead are people unified by mutual outrage over the pervasive trashing of the constitutional rights of their constituents.
The intelligence community’s second and even more emotional line of attack is to assert that the United States cannot succeed in fighting fentanyl if there is a warrant requirement for the surveillance of Americans. Make no mistake, leaders on both sides are fierce in their desire to combat the importation of fentanyl and stop the carnage it inflicts. We believe members of Congress are more than willing to give counternarcotics trafficking its own certification, or line of authority, under Section 702 as recommended by the President’s Intelligence Advisory Board.
No proposed reform would curtail the ability of the intelligence community to use Section 702 to find the foreign labs that make fentanyl, whether in China or Mexico, and track the cartels that smuggle it. All we ask is that when an American becomes a suspect in this trafficking, that the government seek a probable cause warrant as required by the U.S. Constitution.
Our country knows how to balance freedom and security. We didn’t jettison the Fourth Amendment to fight the mafia, catch Soviet spies, or fight cocaine trafficking. We can fight fentanyl without throwing away the Constitution. We are hopeful that members of Congress will not be swayed by fear-mongering and stay firm on that principle.
We tell our fellow reformers that while circumstances give us the upper hand, we are still in for a fight. The intelligence community has formidable resources. There are 18 federal intelligence agencies, each armed with its own lobbyists, public relations and media specialists.
As they spin with more fury, we should remember we don’t have to choose between security and the Constitution. We can have both.
Bob Goodlatte represented Virginia’s Sixth District as a Republican in Congress from 1993 to 2019 and chaired the House Judiciary Committee. Mark Udall was a U.S. senator representing Colorado as a Democrat from 2009 to 2015. Both are senior policy advisers to the Project for Privacy and Surveillance Accountability.