This week, the House Intelligence Committee voted along party lines to release a controversial Republican memo alleging improper political surveillance of President Donald Trump’s campaign. Although we don’t know the full contents of this memo, which was written by staff for Rep. Devin Nunes (R-Calif.), it’s clearly focused on accusing the Justice Department and the FBI of abusing the Foreign Intelligence Surveillance Act. But that focus misrepresents how FISA works, the checks that are in place and where the real risks for abuse reside.
FISA, a highly complex law, has two provisions particularly relevant to the Nunes memo and the hypocrisy surrounding the Republicans’ sudden concern about it. First is Title I of the 1978 statute, commonly called “traditional FISA,” which is used to target suspected agents of foreign powers (e.g., spies, terrorists or people who aid them).
Second is Section 702 of FISA, passed in 2008 as an evolution of President George W. Bush’s terrorist surveillance program. Although the section only targets foreigners abroad, it doesn’t require any suspicion of wrongdoing by or judicial approval of targets. As a result, this warrantless surveillance sweeps up a huge number of communications involving Americans, including some members of Congress. Unfortunately, the intelligence community last year reneged on a promise to Congress to estimate how many Americans are affected, leaving lawmakers and the public in the dark about one of Section 702’s most concerning aspects.
Given Nunes’ views ― and his history of voting ― on surveillance, his memo (which might have been developed in coordination with the White House) likely relies on a legal fable: that traditional FISA is the part of the law that’s unchecked and susceptible to abuse, while Section 702 is just fine.
Prior to a congressional vote to reauthorize and expand Section 702 earlier this month, Trump tweeted (after some confusion) an endorsement and depicted the section as distinct from the part of FISA that was used “to so badly surveil and abuse the Trump campaign.” White House press secretary Sarah Huckabee Sanders echoed this narrative when she said, “The president fully supports 702 … but he does have some overall concern with the FISA program more generally.”
As for Nunes, while his memo appears to be centered on traditional FISA, he was the lead sponsor of that bill to reauthorize Section 702.
But the notion that traditional FISA is dangerous while Section 702 is worry-free doesn’t pass the laugh test. In reality, traditional FISA contains the basic checks we expect when the government eavesdrops on our private communications, while those checks are frighteningly absent from Section 702.
First, traditional FISA requires suspicion to pry into Americans’ communications, while Section 702 requires none. Under traditional FISA, the government cannot engage in surveillance unless it shows probable cause that someone is acting as an agent of a foreign power, which significantly limits the breadth of monitoring and potential for abuse. In contrast, the government can generally search its databases for any American’s communications collected under Section 702 without any suspicion of wrongdoing. That leaves the system much more susceptible to fishing.
The Nunes memo supposedly argues that the FBI abused traditional FISA by relying too much on the Steele dossier to obtain a warrant. But under Section 702, the FBI could scour its databases for communications by Trump campaign officials (or any other American) based on a mere anonymous tip from former British spy Christopher Steele (or anyone else). It seems inconceivable that Nunes truly believes the FBI has hijacked a part of FISA that requires a probable cause showing when he doesn’t worry that misconduct could occur under the part of FISA that allows the bureau to search first and find evidence later.
Second, traditional FISA requires judicial approval to seek out Americans’ communications, whereas Section 702 does not. By mandating that the government not only gather probable cause but also convince a court that surveillance is merited, traditional FISA safeguards against any officials who would exaggerate evidence or ignore requirements entirely.
Meanwhile, when intelligence agencies search their databases for communications collected under Section 702, judges are virtually never involved. So under Section 702, the only check against improper efforts to look at Americans’ communications comes from the agencies themselves.
This is why it’s so tough to buy the narrative coming from Nunes and the White House that the intelligence community is abusing FISA under a court’s watchful eye, but Americans need not worry about FISA surveillance when that independent check is taken away.
If Congress or President Trump believes FISA is vulnerable to abuse, the sensible reaction is to add checks where Section 702 is used to focus on Americans. Specifically, FISA could be amended so that whenever the government queries its databases for an American’s communications, it must get judicial approval based on probable cause before reading any communications collected without a warrant under Section 702. Even if there are currently no efforts to misuse FISA, this would be an important shield to prevent future impropriety. Indeed, many Republicans and Democrats have supported adding this reform, although Congress did not include it when reauthorizing Section 702 and is unlikely to consider doing so in the near future.
But there are steps we can take now. Pushing the FBI to tally how often it looks at Americans’ communications and calling for the intelligence community to follow through on its promise to provide an estimate of Americans swept up in Section 702 surveillance would provide much-needed perspective. If Congress truly cares about guarding against improper surveillance, its members should demand public disclosure of this information about Section 702 just as fervently as some are demanding that they #ReleaseTheMemo.
Jake Laperruque is senior counsel for The Constitution Project at the Project On Government Oversight, where he works on issues of surveillance, national security and defending privacy rights in the digital age.