Obama's Domestic Surveillance Puts Wiretap Law in Jeopardy

Thanks to leaks targeting Michael Flynn and other members of the Trump administration, the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, as currently written, is in doubt.

Superficially, Section 702 seems fine. It is a tool that enables the intelligence community to target communications of non-US persons for intelligence reasons. The reality, as we’ve seen, is a lot more sordid. US citizens have their communications intercepted and, contrary to the law which requires their identity to be protected, their identities and conversations distributed within the government. Ostensibly, this “unmasking” is used to help the eavesdroppers understand the context but it seems pretty conclusive that under the Obama administration FISA was used as a backdoor to monitor political opponents (for instance, during the Iran nuclear deal negotiations) and the authority to unmask was pervasive. Samantha Power, the UN ambassador, seems to have directed the unmasking of US citizens caught up in the FISA dragnet. It is well established that Section 702 has been used to target Americans by the simple expedient of targeting foreigners with whom they were communicating and then unmasking them. The Electronic Frontier Foundation has documented a lot of these abuses. The FISA court, itself, is on record saying that the FBI, in particular, widely abused their authority and shared the identity of US citizens caught up in “incidental” surveillance with persons who did not have the clearance or need to see the information.

Via McClatchy:

A small revolt in corners of the Republican Party bedevils plans for reauthorization this year of surveillance capabilities considered the “crown jewels” of the U.S. intelligence community.

Those capabilities, subject of a Senate intelligence committee hearing Wednesday, has some Republicans worried that they could get caught up in the same secret government intercepts of communications that helped to land President Donald Trump’s short-lived national security adviser in legal jeopardy.

Indeed, some conservatives on Capitol Hill think intelligence sources could leak information on them too, as they did on former national security adviser Michael Flynn, and routinely flout laws sharply limiting surveillance on Americans.

While the resistance to reauthorization is still forming, it seems to be large enough to force reforms to the law:

Arthur Rizer, a national security director at the R Street Institute, a libertarian-leaning conservative think tank, said the mood on Capitol Hill “has shifted dramatically,” especially among emboldened members of the rebellious Freedom Caucus—a congressional bloc of conservative and libertarian Republicans allied with the Tea Party movement who stormed back to relevance in the debate on a proposed overhaul of Obamacare.

“It’s like a perfect storm,” he said “There are enough Republicans who are Trumpites, and they see the intelligence community as the enemy.”

“They are trying to strategize how best to attack this issue,” Rizer said, noting that he had met with several Freedom Caucus members and said that one spoke of his deep dissatisfaction with existing surveillance powers granted to intelligence agencies under the Foreign Intelligence Surveillance Act.

“He said, ‘I will vote for sunset over re-authorization.’ I had never heard a Republican say that,” Rizer said, declining to identify the lawmaker.

Some lawmakers think re-authorization is in trouble without significant reforms.

“They don’t have the votes to pass it. It is that bad,” the Republican aide said.

Tom Cotton has introduced legislation to make Section 702 permanent rather than requiring regular review and approval by Congress:

WATCH my remarks on the Senate floor about making Section 702 of FISA permanent: pic.twitter.com/vnPKoGBIUC

— Tom Cotton (@SenTomCotton) June 6, 2017

As much as I admire Cotton, I think he is on the wrong side of this issue. The Obama administration proved that Section 702 can easily be used for domestic political purposes and he did so. Making such a flawed law permanent is sheer folly. Even Lindsey Graham thinks there is work to be done:

Sen. Lindsey Graham said Tuesday he won’t approve a critical surveillance provision until politically damaging leaks of classified information are investigated and brought under control.

Graham said he isn’t ready to approve legislation to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, which allows the National Security Agency to monitor telephone communications and Internet data generated by foreign nationals but can also sweep up Americans.

Graham, a senior member of the Judiciary Committee, which will consider the legislation, said he first wants to determine who has been leaking FISA-gathered intelligence to the media. The leaks began as soon as President Trump took office and have been damaging to the Trump administration.

“As big a fan as I am of incidental collection, I’m not going to reauthorize a program that could be politically manipulated,” Graham said Tuesday.

Graham added he also wants to investigate whether the Obama administration used the FISA law to hurt Trump.

Graham is among a growing group of Republicans who have in the past voted for FISA renewals but are angered by the leaks about the Trump administration.

House Intelligence Committee Chairman Devin Nunes, R-Calif., said the FISA leaks would make renewing the law difficult in the House.

Unless some transparency and safeguards can be introduced into the Section 702 process as it pertains to US citizens, we are much better off taking our chances with the terror attack that could conceivably happen than suffering the tyranny that will inevitably come.