House Divided Over Surveillance Authority

From the The Morning Dispatch on The Dispatch

Happy Thursday! A new study found people who wear glasses earn slightly more than people who don’t. It should come as no surprise that your TMD editors are delighted by this news.

Quick Hits: Today’s Top Stories

• An Israeli airstrike in Gaza City killed three sons of Hamas leader Ismail Haniyeh on Wednesday. The Israel Defense Forces (IDF) confirmed the strike on the individuals they described as operatives in the terrorist organization. Hamas claimed four of Haniyeh’s grandchildren were also killed in the strike, which the IDF did not confirm.

• During a state visit by Japanese Prime Minister Fumio Kishida on Wednesday, President Joe Biden and his Japanese counterpart announced deepened cooperation across several areas, including the creation of a joint military command structure in Japan and a plan to work with Australia to build out coordinated missile and air defenses in the region. Biden also said Japanese astronauts will join NASA’s Artemis missions, which would make the Japanese astronauts the first non-Americans to set foot on the moon. Later today, Biden and Kishida will meet with Filipino President Ferdinand “Bongbong” Marcos to discuss Chinese aggression in the South China Sea.

• Exit polls showed the South Korean opposition, the Democratic Party, had clinched a decisive victory over President Yoon Suk Yeol’s conservatives in national parliamentary elections on Wednesday. Yoon—who was elected in 2022 for a five-year term—has aligned the country with the United States and pursued closer ties with Japan. The opposition and an allied party, which appear to have captured a combined 175 seats in the 300-seat National Assembly, campaigned on stalling Yoon’s pro-business domestic agenda.

• The Consumer Price Index rose 0.4 percent month-over-month and 3.5 percent annually in March, the Bureau of Labor Statistics reported Wednesday, up from 3.2 percent year-over-year growth in February and exceeding economists’ expectations. Stripped of more volatile food and energy prices, inflation rose 3.8 percent year-over-year. The hotter-than-anticipated data will likely keep the Federal Reserve from cutting rates when it meets at the end of this month, and possibly longer.

• A New York appeals court on Wednesday rejected former President Donald Trump’s third attempt in recent days to delay his criminal trial related to hush money payments to porn star Stormy Daniels, which is set to begin on Monday. Meanwhile, former Trump Organization executive Allen Weisselberg was sentenced to five months in prison for lying under oath during testimony related to the New York civil fraud case against Trump and his business associates. Weisselberg previously served five months for tax fraud he committed while at the Trump Organization.

• Speaking to reporters in Atlanta on Wednesday, Trump said that he would not sign a national abortion ban as president if federal legislation passed Congress and reached his desk. He also said the law that will soon go into effect in Arizona—which bans all abortions in the state with the exception of those necessary to save the life of the mother—went “too far” and will “be straightened out,” and predicted that the six-week restriction signed into law by Florida Gov. Ron DeSantis last year would be rolled back by voters in November. “Florida’s probably going to change. Arizona’s going to definitely change,” Trump said. “Everybody wants that to happen. And you’re getting the will of the people.”

Section 702 Reauthorization Falters

In January 2018, then-President Donald Trump was doing what he often did in those days: tweeting. The House of Representatives, meanwhile, was preparing to reauthorize a key surveillance authority used by federal law enforcement and intelligence agencies with the White House’s blessing—or, so they thought.

At 7:33 a.m. on January 11, 2018—just as the hosts of “Fox & Friends” happened to be discussing the effort to re-up Section 702 of the Foreign Intelligence Surveillance Act (FISA)—Trump fired off a tweet. “‘House votes on controversial FISA ACT today,’” he wrote, quoting a Fox News chyron. “This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?” As it happened, that was exactly what “Fox & Friends” host Steve Doocy was wondering aloud on air at about that time!

As our very own Steve Hayes reported at the time for The Weekly Standard, Trump’s cable news-inspired pivot from the position his administration had held only hours before briefly put the reauthorization in doubt, although the president sent a follow-up tweet clarifying his support for reauthorization and the bill passed the House later that day.

Though Trump no longer “tweets”—he “truths”—old, legislation-sinking habits die hard. On Wednesday, Republican House leadership hoped to reauthorize Section 702 ahead of its expiration on April 19. But at 1:43 a.m. on Wednesday morning, Trump wrote the following on his Truth Social account: “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!”

The Biden administration, congressional leaders from both parties, and intelligence officials have all pushed for Congress to reauthorize Section 702, but renewal faces opposition from progressives and hardline Republicans, now buttressed by the former president.

The House voted down the rule on the bill to reauthorize Section 702 yesterday—a procedural move necessary to bring a measure to the floor. More than 200 Democrats voted against opening up debate on the bill—the minority generally opposes procedural votes brought by the majority—and they were joined by 19 Republicans, tanking the effort. “We’re going to regroup and consider next steps,” House Speaker Mike Johnson said yesterday. “We cannot allow Section 720 of FISA to expire. It’s too important to national security. I think most of the members understand that.”

But Trump’s kill order—and his waffling in 2018—is based on a misunderstanding of FISA. The FBI used a different element of FISA, Title I, to surveil former Trump campaign policy adviser Carter Page based on applications that the Justice Department inspector general later assessed to be flawed and incomplete.

Section 702—which, unlike Title I, must regularly be reauthorized—allows for the initiation of surveillance programs, not the surveillance of individuals. And as we explained in June:

Section 702 has become increasingly controversial due to its implications for Americans’ private communications and data. The law is structured to allow law enforcement agencies to “incidentally” collect U.S. citizens’ information in the course of targeting foreign individuals and store that in an intelligence database officials can then search using an American’s identifying information.

And government reviews have found significant abuses of Section 702 authority. For example, a redacted memo released last May from the Foreign Intelligence Surveillance Court (FISC)—the body that oversees the surveillance authority—found that the FBI had abused Section 702 authority thousands of times with some searches of Americans’ data lacking “any specific potential connections to terrorist-related activity’ known to those who conducted the queries.” A separate FISC memo from last year found that agencies conduct 200,000 warrantless—or “backdoor”—searches every year. (Scott Gosnell wrote a great explainer on the site last month that gets into the weeds on the context and function of Section 702.)

Still, national security officials insist that Section 702 is indispensable in protecting the U.S. and its citizens. “Section 702 provides unique insights into foreign intelligence targets—such as foreign adversaries; terrorist organizations, including Hamas; weapons proliferators; spies; malicious cyber actors; and fentanyl traffickers—and it does so at a speed and reliability that we simply cannot replace with any other authority,” Director of National Intelligence Avril Haines testified last month.

Some federal intelligence leaders have acknowledged the abuses but insist that internal reforms that have since been adopted are sufficient to curtail unjustified searches in the database of U.S. information. “I’ve been unequivocal that the compliance incidents we’ve had in the past are unacceptable,” FBI Director Christopher Wray said on Tuesday. “And in response, we’ve undertaken a whole host of reforms to ensure that we’re good stewards of this authority.” The FBI and the Biden administration support codifying those internal policy changes into law but oppose more substantial reforms, such as requiring a warrant to search Americans’ data. By enacting a warrant requirement, Wray argued that “Congress would be making a policy choice to require us to blind ourselves to intelligence in our holdings.”

But the intelligence community’s commitment to good stewardship isn’t inspiring confidence for everyone on Capitol Hill. “Why should we ever trust the FBI and [Justice Department] again to police themselves under FISA when they’ve shown us repeatedly over more than a decade that they cannot be trusted to do so?” Republican Sen. Mike Lee said at a hearing with intelligence officials last June.

Progressive and conservative policymakers concerned about privacy protections joined forces with hardline Republicans critical of federal law enforcement and intelligence agencies to craft legislative reforms to Section 702. Their proposals attempted to narrow the authority to prevent so many U.S. citizens from being caught up in unjustified searches. For example, the Government Surveillance Reform Act—introduced by a bipartisan group of lawmakers in November—would require the government to secure a warrant before searching Americans’ communications (with some exceptions for emergency circumstances). Some of the same Senators proposed a pared-down version of the warrant requirement last month.

But those bills weren’t up for a vote this week. Johnson instead moved forward with the Reforming Intelligence and Securing America Act, a bill greenlit by the House Intelligence Committee and backed by national security hawks and lawmakers who favor smaller changes to the program. The move frustrated advocates of more stringent reform, particularly because Johnson originally said the House would vote on both camps’ bills.

“Despite its name, the bill is not a serious reform proposal,” Noah Chauvin—counsel in the Liberty and National Security Program at the Brennan Center for Justice at NYU Law—argued in a piece published on our site Tuesday. “Among many other defects, the bill does not contain a warrant requirement for backdoor searches. And the modifications it does make, such as codifying the FBI’s recent internal rule changes, would do nothing to prevent the intelligence agencies’ pervasive abuses of Americans’ Fourth Amendment rights under Section 702.”

National security and intelligence hawks have often relied on dramatic examples of the national security threats averted using Section 702 surveillance—most of which remain classified—to advocate for renewal of the law. “I just received a briefing about the importance of reauthorizing FISA,” Republican Sen. Lindsey Graham said in a statement Wednesday. “I have never seen so many circumstances in real life that mimic the TV show ‘24.’” Johnson made a similar point yesterday, explaining why he now supports reauthorization after his previous criticisms of the law as a rank-and-file member.

“Requiring a warrant for U.S.-person queries—which are typically conducted in the nascency of an investigation; when we usually cannot establish probable cause or demonstrate exigency; where time is of the essence to get ahead of the bad guys—would be a deliberate and shortsighted choice to blind us to the threat of a foreign terrorist in the U.S. planning and even executing an attack,” FBI Director Wray said this week, citing an example from last year where intelligence authorities intercepted and preempted a serious threat through a U.S.-persons search that he claimed couldn’t have been done under a warrant requirement. “Bottom line,” Wray continued, “a warrant requirement would be the equivalent of rebuilding the pre-9/11 intelligence ‘wall.’”

But some lawmakers don’t buy that reforms will seriously threaten national security. “I’ve been in the SCIF, the classified area where they’re supposed to tell us the problems with requiring a warrant, and they never have told us an example—a single example—of where getting a warrant would be a problem for national security,” libertarian-leaning GOP Rep. Thomas Massie said in remarks on the House floor yesterday.

Some observers point out that Trump’s 11th-hour stand against reauthorization is less of a factor than one might think in stalling the reauthorization. “To those who have been following Section 702, today’s vote was no surprise,” argued Elizabeth Goitein, a colleague of Chauvin’s at the Brennan Center. “It was a predictable response, not to Trump, but to [Speaker Johnson’s] decision to roll the committee of jurisdiction (Judiciary) and block reforms demanded by members and by the American people.” Some GOP defectors in the House are no doubt following Trump’s lead, but the privacy hawks and hardliners have made clear for months that they’ll only support reauthorization if significant reforms are attached.

If the April 19 deadline passes without renewal, the program could continue into next year, because the government has already obtained its yearly certification from the FISC. But officials informed lawmakers in a letter last month that a lapse in authorization could still endanger the government’s ability to use Section 702 authority. It’s unclear what Johnson’s plan is now for reauthorization. Some House Republican national security hawks have floated bringing the bill to the floor through a process called “suspension of the rules,” which would require a two-thirds majority vote. Because, as the speaker noted yesterday, “It’s never helpful for the majority party to take down its own rule.”

Worth Your Time

• In a podcast for Christianity Today, Editor-in-Chief Russell Moore interviewed our old friend Nancy French about her upcoming book, Ghosted: An American Story. The conversation—at turns hilarious, tragic, and heartwarming—is worth listening to in its entirety. But we were particularly struck by Nancy’s response when asked what she’s learned covering high-profile instances of abuse in church and religious settings. “I’ve never really seen an institution with whom I’ve been connected respond correctly,” she said. “I think what happens is these institutions were created for God’s glory in various ways, and then they exchange that purpose for risk aversion [and] brand management. And so, as Curtis Chang has written, that is idolatry, and idolatry is all throughout the Bible. And when you read about idols in the Old Testament, they frequently demand sacrifice, including women and children. And I think that’s what’s happening now, with all of these organizations. They’re completely fine [with] sacrificing the lives and well-being emotionally of women and children just to survive and it’s quite shocking and it’s horrific.”

• America does not need its own Caesar, Jeffrey Tyler Syck argued in Persuasion, adding we should be wary of those on the right who say a strongman is necessary to meet the moment. “Advocates of Caesarism today see such centralization as the cost of achieving great things,” Syck wrote. “Like Julius and Augustus, they argue that deep transformation can only be accomplished through upending the entire political system. … But even if we had reached the dire situation extremists say we have, strongman rule is not a workable solution. Ultimately, Caesarists view equality, tradition, virtue, or some other cultural institution as the chief aim of politics—and they are willing to do anything to achieve it. In this way, they reveal not only their tyrannical impulses but a dearth of basic political knowledge. Art, virtue, and everything else of value that defines a society must be left to evolve organically. The will of a single individual cannot bring into being art—for innovation requires freedom. A strongman cannot build a well-ordered people—for that requires self-government. Caesar can never cultivate a great culture—he can only manage decline.”

Presented Without Comment

NBC News: Florida Gov. Ron DeSantis Privately Tells Donors He Plans to Fundraise for Trump

Also Presented Without Comment

Politico: [Former White House Chief of Staff Ron] Klain on Biden: He is Focused Too Much on Bridges

Toeing the Company Line

• In the newsletters: The Dispatch Politics crew covered the Arizona Supreme Court’s abortion ruling, Scott broke down (🔒) what a “China Shock” actually means, and Nick argued that (🔒) that Mike Johnson and Marjorie Taylor Greene are representative of two MAGA factions driving a new level of House GOP dysfunction.

• On the podcasts: On today’s episode of Advisory Opinions, Sarah and David dig into the jury questionnaire in the hush money case before getting into the weeds of originalism. Plus, Jonah is joined on The Remnant by former Israeli lawmaker Dr. Einat Wilf to discuss the past, present, and future of the Israeli-Palestinian conflict.

• On the site: Nick Hafen explains Florida’s new social media law and Scott Salvato dives into the Catholic Church’s stance on immigration.

Let Us Know

Should Section 702 be reauthorized as-is or be allowed to lapse until additional reforms are implemented?

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