Buried Under Russia Turmoil, a Real FISA Debate

With less than six months to go before a controversial foreign-surveillance amendment sunsets, lawmakers are struggling to find their focus—and reformers may be missing an opportunity.

Acting FBI Director Andrew McCabe, Deputy Attorney General Rod Rosenstein, Director of National Intelligence Dan Coats, and National Security Agency Director Mike Rogers testify before the Senate Intelligence Committee on Wednesday.
Chet Susslin
Brendan Bordelon
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Brendan Bordelon
June 7, 2017, 8 p.m.

On Wednesday, the Senate Intelligence Committee gathered together four top law enforcement and intelligence officials for a hearing to discuss the merits of reauthorizing portions of the Foreign Intelligence Surveillance Act set to expire in December. Then—as happens so often in Washington lately—the conversation turned to Russia.

“It does seem like Russia pretty much sucked the oxygen out of the room,” said Julian Sanchez, a technology and privacy researcher at the libertarian Cato Institute. Sanchez had hoped the hearing would kick off an argument in the Senate over whether Congress should reform Section 702 of FISA—a provision that allows U.S. spy agencies to monitor the electronic communications of foreign targets but also allows for some “incidental” data collection on American citizens.

But lawmakers—particularly Democrats—instead zeroed in on whether President Trump pressed Director of National Intelligence Dan Coats and other officials to quash an ongoing investigation into his campaign’s ties to Russia. The repeated line of questioning prevented lawmakers from asking the panelists about a recently-released Foreign Intelligence Surveillance Court opinion that slammed the intelligence community for repeated violations of Americans’ privacy protections through Section 702. It also closed to the door to any lawmaker questions on potential avenues of reform.

Intelligence ranking member Mark Warner took questions on Russia after the hearing, but he left before answering questions on Section 702. “Much more to come on 702,” the senator called over his shoulder, after a plaintive call from a reporter asking whether the hearing had moved the needle on reform.

The lack of focus is a problem for those hoping Congress can come to a compromise on Section 702 before the intelligence community’s foreign-surveillance authority expires at the end of the year. As potential reformers instead focused their attention on Russia, the administration and its congressional allies—who are pressing for a “clean” reauthorization of FISA without any changes to Section 702—highlighted the broad importance of the program in preventing terrorist attacks while ignoring specific reforms or violations.

“Basically nothing that any of the witnesses said—about Section 702, or its importance, or how it works—was an argument against reforming it to include greater privacy protections,” said Liza Goitein, codirector of the Brennan Center for Justice’s Liberty and National Security Program at New York University. “There were a lot of red herrings about what would happen if Section 702 didn’t exist, but very little discussion about, for example, why there would be any problem with requiring a warrant to search for Americans’ communications.”

The failure to drill down on those questions may be a missed opportunity for reform-minded lawmakers facing a different political climate from the one that existed in 2012, the last time Section 702 was up for reauthorization. After the Edward Snowden revelations, and with congressional Republicans increasingly concerned that the intelligence community is deliberately targeting the Trump administration through leaks and “unmasking,” some see a rare chance for broad changes to the government’s surveillance powers.

“There is an unexpected opportunity to build more consensus over some kind of reforms,” said Sanchez. “And to the extent that everybody is chasing Russia, I don’t think we’re seeing that opening exploited.”

The Trump administration and its allies seemed prepared for a tougher hearing on Section 702 than they actually faced on Wednesday. The New York Times published an op-ed from White House counterterrorism adviser Thomas Bossert on Wednesday morning in which he pushed for a clean reauthorization of the program. Bossert also praised legislation introduced Tuesday by Republican Sen. Tom Cotton that would scrap the sunset provision and permanently enshrine Section 702 as a surveillance tool.

“This is a certain strategy which often works well for conservative lawmakers,” said Goitein. “When reforms are proposed, go exactly in the opposite direction in the hope you’ll end up at the status quo.” Every Republican senator on the committee has signed on as a cosponsor to Cotton’s legislation, and none questioned the administration panelists on specific reforms.

Democratic senators also punted on questions over privacy violations or possible changes to the program. With the exception of a feisty exchange between Sen. Ron Wyden and Coats over the latter’s alleged walk-back of a promise to provide an estimated number of Americans whose data is incidentally collected, administration representatives were spared tough questions on Section 702 from either side of the aisle.

“The Republicans were pretty happy not to talk about Russia and to focus on throwing them softballs about what a pretty pony 702 is,” said Sanchez. “Whereas the Democrats—even if they might in principle be interested in pushing back on 702—couldn’t resist devoting a lot of their time to Russia questions.”

But though the administration and its Republican allies appear to have gotten a head start in their push for a clean reauthorization, it’s not clear that the angst over Russia will continue to protect them as the year-end deadline draws closer. That’s particularly true when it comes to skeptical Republican lawmakers, who are less likely to be drawn into the ongoing Russia drama.

“Much of the Senate Intelligence Committee is behind Section 702, and many of the members see little need for reform,” said Michelle Richardson, a deputy director at the Center for Democracy and Technology. “That is not the case outside of the committee. That is certainly not the case in the House. And so the administration is not going to be able to avoid a substantive conversation about reform for very long.”

And outside events—particularly a large-scale terrorist attack, or new revelations about the scope and scale of the surveillance program and its potential abuses—could completely upend the debate between now and December.

“I don’t think it’s a coincidence that the Trump administration has suddenly decided it’s not possible to generate an estimate of the number of Americans whose communications are swept up,” said Goitein. “That estimate—were it to become public—could have a major effect on the public’s willingness to tolerate the program in its current form.”

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