During the George W. Bush presidency, Democrats were vehement and clamorous defenders of Americans’ civil liberties. They inveighed against the National Security Agency’s surveillance programs as though the agency were spying on ordinary Americans in their homes and generally behaving like the East German Stasi. In fact, the NSA conducted itself with remarkable caution and with a respect for constitutional liberties in the aftermath of the terrorist attacks on 9/11. But such were the civil libertarian sensibilities of liberal politicos when a Republican was president.
Those same Democrats went curiously quiet during the Obama years. In 2015, for instance, when Edward Snowden released documents showing that the Obama Justice Department had authorized the NSA to search domestic Internet communications without warrants, there were few denunciations among erstwhile civil libertarians of the left. And when Bloomberg’s Eli Lake discovered that Obama’s national security adviser Susan Rice had requested the “unmasking” of Trump campaign officials in intelligence reports—she wanted to know the otherwise redacted identities of Americans referenced in raw intelligence reports—Democrats didn’t care. They were certain that Trump and his associates were guilty of something. Curiously, the possibility that senior U.S. officials had abused the awesome surveillance powers of the government to spy on their political opponents didn’t much interest them.
Democrats trusted the Obama administration and distrusted the Bush administration. What looked to them like an egregious transgression of American ideals in 2006 looked like no big deal a few years later.
All of this makes us dread the impending debate over an important foreign surveillance law. Section 702 of the FISA Amendments Act will expire at the end of this year unless Congress acts to reauthorize it. That cannot happen. The program is crucial.
Section 702 was a compromise hammered out in 2008 after nearly three years of argument over the Bush administration’s monitoring of terror suspects located outside the United States if their communications involved someone on American soil. When parts of the “Stellar Wind” surveillance program were exposed by the New York Times in 2005, Democrats and libertarians accused the administration of illegally “spying on Americans.” The Times’s headline screamed “Bush Lets U.S. Spy on Callers Without Courts.” But the U.S. government had constitutional and statutory authority to eavesdrop on foreign terrorists without a warrant, even if they were speaking to someone inside the country. It’s both legally and ethically unnecessary to force American intelligence officials to obtain a warrant from a judge before they can monitor, say, the text messages of a terrorist in Kabul or Hamburg simply because that terrorist may be contacting a cobelligerent inside this country.
The FISA court vindicated this line of reasoning in a 2009 opinion, but by that time Congress had already reached a compromise and amended the Foreign Intelligence Surveillance Act accordingly with the Amendments Act. The compromise was needlessly protective of foreign terrorists. It was a result of the news media and Democrats insisting, with no evidence, that the Bush administration had collected phone records in an attempt to gather intelligence on Americans.
But the compromise of 2008 at least allows intelligence officials to do their jobs. Under its provisions, the U.S. government may monitor communications of foreigners outside the United States so long as the monitoring doesn’t target Americans or anyone located in the United States. The law’s strictures are thorough. The director of national intelligence and the attorney general must both authorize any surveillance. “Incidental collection”—the inevitable capturing of U.S. citizens’ communications in the surveillance of foreign targets—is tightly regulated under 702: Officials may not, for instance, “reverse target” a foreigner for the purpose of getting information on an American.
Restrictive though the law is, intelligence officials have made it work. For example, using 702 authority, NSA officials intercepted emails about making explosives between an al Qaeda operative in Pakistan and an unknown person in the United States. The NSA passed that information on to the FBI, which went to work and identified the unknown person as Najibullah Zazi, who was living in Denver. A 2014 government report recounts his capture:
The FBI then began intense monitoring of Zazi, including physical surveillance and obtaining legal authority to monitor his Internet activity. The Bureau was able to track Zazi as he left Colorado a few days later to drive to New York City, where he and a group of confederates were planning to detonate explosives on subway lines in Manhattan within the week. Once Zazi became aware that law enforcement was tracking him, he returned to Colorado, where he was arrested soon after. Further investigative work identified Zazi’s coconspirators and located bomb-making components related to the planned attack. Zazi and one of his confederates later pled guilty and cooperated with the government, while another confederate was convicted and sentenced to life imprisonment. Without the initial tip-off about Zazi and his plans, which came about by monitoring an overseas foreigner under Section 702, the subway-bombing plot might have succeeded.
This successful intelligence operation involved no spying on Americans. Using Section 702, intelligence officials discovered a terrorist cell on the verge of attacking an American city.
Congressional reauthorization of Section 702 seems likely, but as Jenna Lifhits reports elsewhere in these pages, it won’t be a “clean” reauthorization. The law will be changed. Democrats appear to be largely supportive of reauthorization, perhaps owing to their newfound belief in the value of foreign surveillance, supposing as they do that the 2016 election went awry as a direct result of foreign operatives meddling in our election. Many Republicans support reauthorization, too. But they are spooked by reports that Obama administration officials abused the program for rank political ends late last year.
Some of these worries grow from a misunderstanding of the 702 program and its restrictions. Others are the result of irresponsible theorizing about the omnipresence of the “surveillance state.” But there are legitimate concerns, too.
Fox News reported last week that Samantha Power, Obama’s ambassador to the United Nations, requested more than 260 “unmaskings” in 2016. That seems an astonishingly high number. But it’s not clear that any of these requests were specifically aimed at Trump associates, and there are potentially valid reasons for Power to have made her requests. North Korea and Iran, for instance, both have delegations at the U.N. in New York and do not have a presence in Washington.
If there are valid responses to these concerns, intelligence officials have been slow to provide them to both congressional oversight committees and the public. Those officials’ reflexive secrecy may end up jeopardizing a program they themselves believe to be a vital tool in thwarting terror attacks. They are right. It is vital. They had better start making the case for it.
