GOP lawmakers are raising concerns about surveillance abuses in a controversial memo, weeks after shepherding through the renewal of a surveillance authority. The apparent contradiction has civil liberties advocates asking, what gives?
The heart of the issue lies in a 1978 law known as the Foreign Intelligence Surveillance Act (FISA), which in its amended form details the spying power described in the memo as well as the authority renewed in January. Both are vastly different.
In a memo released last week, Republicans on the House Intelligence Committee alleged that federal officials relied on a politically biased dossier in seeking a warrant to monitor former Trump adviser Carter Page. Per the memo, these officials did not fully disclose the controversial dossier’s political origins (it was paid for by the Hillary Clinton campaign and the Democratic National Committee), nor did they disclose the “anti-Trump” bias of the longtime FBI source and ex-spy, Christopher Steele, who compiled it.
The individualized warrant required to surveil Page would have been obtained under Title I of FISA. But the freshly renewed surveillance authority that passed both chambers in January is known as Title VII of FISA, and its most controversial provision is 702. Section 702 cannot be used to monitor people inside the U.S. or U.S. citizens abroad. But it also does not require an individualized warrant that shows probable cause.
Rather than individualized warrants, under 702, the attorney general and director of national intelligence obtain annual certifications approved by the secretive FISA court. These certifications detail certain categories of foreign intelligence information that will be collected, like information about international terrorism.
“Title I of FISA, which is relevant to the Carter Page warrant, is the least susceptible to abuse because it does require a showing of probable cause,” said Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice.
Goitein said it was hypocritical of House Republicans, who pushed through January’s 702 renewal, to now raise concerns about Title I abuse.
“The potential for abuse and the civil liberties concerns are so much higher in Section 702 than they are in Title I,” she said. “If somebody is fine with Section 702 and expresses concerns about Title I, that causes me to question the sincerity of their concern.”
A spokesman for the House Intelligence Committee countered that oversight of 702 has never turned up the sort of abuse alleged in the memo.
“It’s not a hypothetical question of whether abuses in Title I could mean abuses in 702,” the spokesman said. “We do actual oversight of 702, so we’re continually looking at its implementation, and we haven’t found any indication of the kind of abuses you’re asking about.”
National security hawks say that because Title I and Title VII are so different, and because no evidence of abuse has cropped up regarding 702, it is not contradictory for lawmakers to raise concerns about one but not the other.
“702 is focused on foreigners located outside the United States. The potential impact on Americans is dramatically less than Title I FISA, where the primary purpose is to conduct surveillance in the United States against people located here,” said Jamil Jaffer, former senior counsel to the House Intelligence Committee. For that reason, he said, Title I features rigorous oversight and protections.
Jaffer, founder of the National Security Institute at George Mason University’s law school, questioned the allegations of Title I FISA abuse contained in the memo. “My guess is the content cited in the memo was not the principal basis for the order,” he said. Goitein, a leading privacy advocate, also cast doubt on claims that the memo itself reveals a deliberate, politically motivated abuse of spying powers.
“On its own, the memo doesn’t raise cause for concern,” she said. “If a whole bunch of other facts came to light, that could change things—but I would assume that [House Intelligence Committee Chairman Devin] Nunes would’ve put those in the memo if they existed.”
Goitein said that in 2016, the FISA court denied twice as many warrant applications as in all previous years combined. “This was a year in which the court was applying unusually high scrutiny to these applications,” she said. “The judges would have been particularly careful in dealing with an application that targeted a former presidential campaign aide.”
Civil liberties-minded lawmakers have long raised concerns about the effect that 702, focused on foreigners overseas, has on Americans.
Top law enforcement and intelligence officials in Republican and Democratic administrations have described 702 as a critical tool in counterterrorism efforts. But sometimes, when Americans communicate with a foreign target, their communications get swept up in 702 surveillance ‘incidentally.’
In January, a wide-ranging reform effort by Michigan congressman Justin Amash ultimately failed in the House. Instead, the House and Senate ended up approving legislation driven by the Republican chairmen of the House Intelligence Committee and Judiciary Committee. It featured some changes from the 702 renewal passed in 2012. Its supporters said it represented a reasonable balance between the reforms of the Amash amendment and a so-called ‘clean’ reauthorization.
But civil liberties advocates were disappointed by what they saw as a reauthorization that was rushed through with little floor debate and wasn’t a true compromise between privacy and national security. Amid the memo controversy, that experience has stuck in their minds.
“If in fact Nunes and his allies really cared about privacy protections for Americans in foreign intelligence surveillance, they would have voted very differently for the last ten years,” said Goitein. “I’m not particularly persuaded that they’ve suddenly found religion.”
