FISA Reform

Don't Reform Section 702 Just for the Sake of Reform

By Susan Hennessey, Benjamin Wittes
Monday, October 16, 2017, 11:45 AM

Last week on our Foreign Policy feed, we wrote about how the USA Liberty Act, which is the House Judiciary Committee's proposal to reauthorize the Section 702 surveillance program, takes for granted that a "clean reauthorization" is impossible and imposes reforms for the sake of reform. The piece begins:

What happens when you start with panicky civil libertarians, sprinkle in some right-wing conspiracy theories about “unmasking” intelligence, and polish it off with a healthy dose of congressional dysfunction and a self-imposed legislative deadline? You get bad surveillance policy in the name of reform. Don’t look now, but that’s what’s shaping up in Congress at this moment.

In a little less than three months, Section 702 of the Foreign Intelligence Surveillance Act (FISA) — which authorizes the government to monitor, without an individualized warrant, the communications of non-U.S. persons reasonably believed to be overseas — is set to expire. Section 702 is a very big deal; it cannot be allowed to expire for any length of time without real damage to ongoing intelligence operations. So the closer we get to the sunset, the more opportunity there is to include mischievous “reforms” that the intelligence community simply has to accept — everyone knows the intelligence community would rather take some very bitter pills than lose a program it needs to accomplish its mission.

Last week, the House Judiciary Committee introduced legislation to reauthorize the 702 authority, but it included a number of changes — including a few that are quite significant. No, this bill isn’t the worst thing in the world. The sky isn’t falling. And plenty of other proposals to reform 702 would inflict far more serious harms than this one would. But it’s not a good bill either. It would make the FBI’s job harder for no good reason. It responds to imagined risks, rather than real abuses.

The Judiciary Committee bill is the product of an endeavor that was flawed from the outset. Its drafters were operating from the apparent premise that while 702 is a critical national security authority that must be preserved, a “clean reauthorization” of it without changes is currently a political impossibility. Why is that? Liberals and civil libertarians have always had anxieties about 702. Libertarian conservatives and tea party types have more recently joined the fray. Over the last year, the fraudulent “unmasking” controversy — most of which has nothing to do with 702 — has stoked these anxieties. And lots of people have instinctive difficulty vesting powerful authorities in the hands of the intelligence community under President Donald Trump. The House Judiciary Committee is one of the House’s more polarized committees, so the apparent goal was to thread the needles and draft a bipartisan bill that might satisfy calls for reform while minimizing operational impacts. And if it passes the Judiciary Committee, the bill has a good chance to become law.

If you accept the premise that precluded a clean reauthorization, the committee’s bill is a decent — though far from perfect — effort.

We don’t accept the premise, however, but start with a different one: This is an already dense and complicated area of law in which it is tough for national security operators to do their jobs. To make it denser and more complicated, you need a reason. Reform for reform’s sake is not a good enough reason to add complexity.