There seems to be no end in sight to special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election. But enough details have emerged about Russian involvement in both campaigns, and possible subterfuge by the Obama administration, that legislation has been introduced to address some of the shortcomings of U.S. intelligence law that have been exposed.
The legislation, introduced by Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., would amend Section 702 of the Foreign Intelligence Surveillance Act in a number of ways that would strengthen Fourth Amendment protections for Americans and put foreign intelligence gathering back in its proper lane.
The Wyden-Paul bill, which has 11 cosponsors, would end back-door searches, in which the government targets foreigners in investigations just so it could listen in on Americans known to communicate with them. It would require a warrant based on probable cause to review the American side of the conversation, ban collecting communications that are not to or from a foreign target and prevent the collection of communications that are entirely domestic.
Wyden-Paul would address mission creep in foreign intelligence collection by prohibiting the use of information gathered under Section 702 to prosecute Americans for anything but national security-related crimes, such as terrorism and espionage.
It also would strengthen the Privacy and Civil Liberties Oversight Board to let it review all foreign intelligence surveillance programs, not just those related to terrorism. It would strengthen outside oversight by expanding the process by which outside friends of the court could comment on FISA cases and allowing a basis for “standing” so outsiders can challenge the constitutionality of FISA authority.
The Wyden-Paul bill, which would sunset in four years, also would allow Americans to see the rulings, key FISA findings and data on which it relies to exercise its statutory authority, so people can better understand how this power is used in their name and from what it is derived.
Even though it targets Obama administration abuses, this bill goes forward with the co-sponsorship of 10 Democrats — Paul is the only Republican on board. That should demonstrate a bipartisan recognition that FISA has gotten badly out of kilter and that, as legal scholar Bruce Fein wrote on Huffington Post, “Section 702 should not be extended beyond its current expiration date of Dec. 31, 2017, unless Congress cures its constitutional infirmity.”
There are other reform proposals out there. The Senate Intelligence Committee was to take up one in secret this week, but it is not believed to adequately address the back-door searches problem. The House Judiciary Committee has proposed allowing the government to search the foreign intercept database, but not to use the information without a warrant, but some view this as too weak.
Sen. Tom Cotton, R-Ark., has proposed a clean reauthorization of Section 702 as is, and President Trump is said to support this approach. But it does not appear to have the votes to pass the House.
The Paul-Wyden approach seeks the proper balance between the needs of national security and those of privacy. It appears to address the wrongs exposed by the 2016 election, where, according to reports, members of the Obama administration targeted specific foreigners because they knew those people would have contact with members of the Donald Trump campaign and perhaps even his administration-in-waiting. They then ordered intelligence officials to reveal the Americans involved in the conversations — a practice known as “unmasking” that is supposed to be used only in the most sensitive investigations — as a way to conduct surveillance on Trump and his campaign.
If these allegations are true, this weaponization of our intelligence services by those seeking a political advantage over a candidate or president-elect is unprecedented in American history. The policies that made it possible also are inefficient. Because there are not enough constraints on what can be searched and by whom, analysts at the National Security Agency are said to have to process 40,000-50,000 communications a day — another crippling vulnerability.
Americans are exasperated with the abuses and could be talked into chucking all of 702, which would leave the country vulnerable and its intelligence-gathering tools unused. Wyden-Paul is an effort to bring them back into the fold, to convince them the powers will be properly derived and used and that real oversight will curb future abuses. For that reason, it deserves a further look.
Brian McNicoll is a freelance writer based in Alexandria, Va.
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