Anti-Terror Victory in Congress
The House voted 256-164 on Thursday to reauthorize a surveillance law critical to America’s security for another six years. If the Senate follows up, this will mark a victory for sensible antiterror policy over exaggerated fears on the right and left.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes intelligence agencies to surveil non-U.S. persons who are “reasonably believed” to be located outside the United States. Foreigners don’t enjoy U.S. constitutional protections, and as we have learned the hard way some of them may be plotting attacks on Americans at home or abroad.
Surveillance is an essential U.S. weapon to prevent such attacks, as officials across Democratic and Republican administrations have averred. The House Intelligence Committee notes the law “has been instrumental in preventing numerous acts of terrorism,” including by top Islamic State terrorist Haji Imam.
In 2009 FBI agents in Denver arrested Najibullah Zazi, who was planning to bomb the New York City subway. The Privacy and Civil Liberties Oversight Board, an independent agency within the executive branch, has said that without Section 702 Zazi’s “subway bombing plot might have succeeded.”
The success of tools like 702 has made the terror threat seem less urgent, but it is as dangerous as ever as Islamic State jihadists disperse after their defeat in Syria and Iraq. In October 29-year-old Uzbek immigrant Sayfullo Saipov mowed down eight pedestrians with a truck in Manhattan. ISIS admirer Akayed Ullah tried to blow himself up in a New York subway tunnel in December.
There is no evidence that officials have abused Section 702, and there is multilayered oversight that includes top intelligence officials, Congress and the FISA judges. But the danger is that a left-right coalition in Congress will re-erect barriers between intelligence agencies and law enforcement that led to the failure to detect the 9/11 plot.
Michigan Republican Justin Amash and California Democrat Zoe Lofgren offered an amendment to force agencies to show probable cause to get an order even to query the Section 702 database. They worry the intelligence agencies are using 702 to conduct “backdoor spying” on Americans whose data is incidentally collected through Section 702 surveillance of a foreign suspect.
There’s no evidence this is happening, and requiring probable cause might dissuade the FBI from making a Section 702 query—the opposite of what the post-9/11 laws are meant to encourage. When the intelligence agencies make an American the target of an investigation, they are obliged to get a court order. The Amash-Lofgren effort lost, 233-183.
President Trump didn’t help House leaders on Thursday morning when he muddled Section 702 with the controversy over FISA warrants in the FBI’s investigation of Russia-Trump ties in the 2016 election. Mr. Trump tweeted that the FISA Act “may have been used,” along with the Fusion GPS dossier, to “so badly surveil and abuse the Trump Campaign by the previous administration and others?”
His advisers and House leaders scrambled to educate the Commander in Chief, who later tweeted “I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!” Mr. Trump should take that last bit of his own advice before he tweets.
The President confused Section 702, which is aimed at surveilling foreigners who are abroad, with the emerging FBI scandal, where U.S. officials may have used a dubious intelligence dossier to gain a FISA warrant to spy on Americans. Big difference. If FBI or Justice Department employees committed abuses, Congress can remedy them separately.
The Section 702 debate now moves to the Senate, where it will face a similar left-right crossfire from Kentucky Republican Rand Paul and Oregon Democrat Ron Wyden. Mr. Paul is threatening a filibuster, which means the bill will need 60 votes. Senate leaders appear to have those votes, unless Mr. Trump decides to tweet something else that he doesn’t understand over the weekend.
Appeared in the January 12, 2018, print edition.