At a time when Republicans and Democrats agree on very little, a strong bipartisan coalition is arising on Capitol Hill to tackle one serious concern of the American people – protecting millions of innocent Americans from intrusive and unconstitutional surveillance by the FBI, CIA, NSA, and other federal agencies that rifle through our emails, text messages, and phone calls without a warrant.
The emergence of this bipartisan coalition is prompting former intelligence agency officials to carry the Biden administration’s water by lobbying hard to kill this reform-minded coalition. Stewart Baker and Michael Ellis, lawyers who served in the National Security Agency and the National Security Council, warn conservatives that “left-wing activists” are tricking conservatives. How are they tricking conservatives? By working across the aisle to support reforms that would force federal agencies to get a warrant before searching through American citizens’ personal communications and information.
Baker’s and Ellis’ clumsy attempt to paint surveillance reform as a “left-wing” agenda is embarrassing and an insult to the countless conservatives who support strong reforms. To give just a few examples, Rep. Andy Biggs (R-AZ), not usually referred to as a dupe of “left-wing activists,” recently asked: “How much longer must we watch the FBI brazenly spy on Americans before we strip it of its unchecked authority?”
Rep. Biggs even laid out the likely result of this powerful bipartisan coalition. “What can we get the votes for?” Biggs asked. “How about requiring warrants? How about punishing FBI officials who knowingly or intentionally or even recklessly surveil U.S. private data sources?”
Sen. Mike Lee (R-UT) – also typically not seen as a pawn of the left – recently referred to an unsealed court document showing that the FBI brazenly abused Section 702 of the Foreign Intelligence Surveillance Act. This statute, designed by Congress to enable surveillance of foreign targets to catch terrorists and spies, has instead been used to spy on millions of Americans over the last few years.
As Sen. Lee said, “Hundreds of thousands of searches of Americans’ private communications and information are conducted each and every year without a probable cause warrant – frankly, without any warrant if conducted under Section 702. Now let me be very clear, that number should not just be going down, that number should be zero.”
Domestic targets under Section 702 have included 19,000 donors to an unnamed congressional campaign; people who came to the FBI to perform repairs; victims who approached the FBI to report crimes; business, religious, and community leaders who apply to participate in the FBI’s “Citizens Academy”; college students participating in a “Collegiate Academy”; police officer candidates; and colleagues and relatives of FBI agents. Other targets include Black Lives Matter and Jan. 6 protesters, a respected member of the House, a U.S. senator, a state senator, and a state judge.
Yet Baker and Ellis warn: “A warrant requirement is a bad idea because it would make the 702 databases almost impossible to access … crippling the U.S. intelligence community.” They provide no meaningful support for the nonsensical idea that obtaining a warrant with respect to Americans would cripple an authority that is supposed to be limited to foreign targets. Instead, they argue that because foreign targets’ communications were initially lawfully acquired under Section 702, federal agencies should likewise be able to access Americans’ communications in the 702 database without a warrant.
Baker’s and Ellis’ theory effectively discards the Fourth Amendment and should make no sense to conservatives. As House Judiciary Chairman Jim Jordan (R-OH) aptly put it, “The solution is simple. Require probable cause if you’re going to query this database on American citizens.”
Another absurd warning from Baker and Ellis is that a warrant requirement “would rely on the same broken court process that led to the abuse of FISA in the past.” They refer to the “flimsiness” of the FBI’s claims before the secret FISA Court to obtain four surveillance orders to investigate Carter Page and the Trump campaign over thoroughly debunked claims about Russian influence.
Baker and Ellis are right that the FISA judges showed a remarkable “lack of curiosity” about the FBI’s assertions, but their conclusion is that we therefore should allow the FBI to surveil Americans under Section 702 without even obtaining a warrant or judicial review. That’s like saying the best way to put out a fire is to add gasoline.
A solution to the problem raised would be to couple reforms to Section 702 warrantless searches with reforms to the Title I warrant process, as put forward by the Lee-Leahy Amendment, which won 77 votes in the Senate in 2020. Other reforms make sound constitutional sense to conservatives. We should limit the agencies’ expansive assertion of surveillance authority under no law but an executive order. And any reauthorization of FISA must close the biggest loophole of all – we must bar government agencies from simply buying sensitive personal information that would otherwise require a warrant to obtain.
Instead of working to undermine the strong bipartisan coalition pushing back against the Biden administration by demanding government surveillance reform, we suggest Baker and Ellis might ask themselves: “When leaders of the House Freedom Caucus join with the Progressive Caucus in a determined effort to reform abusive programs, what is the government doing wrong?”
The answer is “quite a lot.”