Republicans' FISA Reform Opportunity
The new Republican House majority faces a tough national security choice. One of the country’s most productive intelligence programs will expire at the end of 2023. Section 702 of FISA allows intelligence agencies to target foreign terrorists, spies, and others by intercepting communications that are passing through the United States. Thanks to this country’s central role in communications networks, it is hard for even determined enemies to keep their communications from touching our soil, and section 702 provides the authority we need to tap them. Because any new surveillance authority is controversial, section 702 contained a “sunset” clause when it was first adopted in 2008. The next sunset is scheduled for December 31, 2023.
Past renewal votes have been close calls. In 2018, the House renewed the authority only because 65 Democrats joined 191 Republicans in a “coalition of the center.” Today, that center is weaker on both sides of the aisle, but especially among GOP members who believe that national security authorities were used for partisan purposes in recent years.
We’d like to dismiss that notion out of hand. But we can’t. After Donald Trump’s surprise victory in 2016, the outgoing Obama administration wiretapped conversations between incoming national security adviser Michael Flynn and Russia’s ambassador. This was technically legal; foreign ambassadors can be wiretapped. But the fruits of that wiretap precipitated high-level White House conversations about whether Flynn was compromised, perhaps even prosecutable. And, shortly after those conversations, the contents of the wiretap were illegally leaked to the Washington Post, forcing a senior member of the Trump team from office within weeks of Trump’s inauguration. It was an indefensible and blatant misuse of a national security intercept.
Partisan use of American intelligence agencies has been blessedly rare in recent decades. But we’d be crazy to think it will stay that way. A recent scandal in Europe shows just how tempting it is for political leaders to use surveillance against their rivals. It turns out that four European Union countries — Poland, Spain, Hungary, and Greece — have been caught using malware to spy on opposition politicians. A fifth, Germany, is openly surveilling one of the largest opposition parties due its right-wing ties.
The leaked wiretap of Gen. Flynn isn’t the only sign that partisanship is creeping into US intelligence. FBI and Justice officials seeking an intelligence tap on Trump campaign adviser Carter Page made court filings that were riddled with errors and omissions not seen in less politicized investigations. And in the last weeks of the 2020 election campaign, when Hunter Biden’s laptop surfaced, more than fifty former intelligence officials invoked their past service to kill the story, claiming it had “all the classic earmarks” of Russian disinformation — a charge that has yet to be supported by evidence.
Congressional Republicans may be tempted to respond by simply refusing to renew a critical surveillance power. That’s the wrong answer. The biggest beneficiaries would be Xi’s China, Putin’s Russia, and a host of terrorist groups. It would also be misguided to try to jam renewal through the lame duck Congress without addressing a serious civil liberties risk.
Republicans should instead use renewal as an opportunity to demand reforms that go beyond FISA to prevent a repetition of the partisan abuses of the recent past. A package of strong anti-partisanship provisions might include stiffer penalties and mandatory non-partisan investigations when intelligence leaks are aimed at domestic political targets; tighter controls on otherwise lawful intercepts that also collect the communications of domestic political figures; an express prohibition on politically motivated use of intelligence authorities; and reforms to improve the accountability of the Department of Justice and the Foreign Intelligence Surveillance Court. To prevent use of intelligence credentials for partisan purposes, former high-ranking intelligence officials who retain a clearance should remain subject to the Hatch Act after they leave government to keep them from tying their political stands to their access to classified information. And the Intelligence Community should be banned from monitoring domestic “disinformation,” a mission that can easily slip into suppression of the opposition party’s speech. These are important reforms that will almost certainly be needed in the age of deep partisan polarization that the United States has entered. But they will not be adopted unless they are tied to a must-pass bill like 702 renewal.
Democrats in Congress will be sorely tempted to vote against these reforms, which lend credence to GOP complaints that many still dismiss as conspiracy theories. That would be remarkably short-sighted. Democrats should look to the future, not the past. There will be Republican Presidents and Republican majorities in Congresses to come. The partisan use of intelligence authorities must be repudiated in clear and binding statutory law. Otherwise, the precedents of the last six years will become a norm that neither party, and certainly not our democracy, can afford.
Stewart Baker, a Washington lawyer, has held multiple national security positions in government, including general counsel of the National Security Agency in 1992-94. Michael Ellis has served in senior positions in Congress, the White House, and the Intelligence Community, including as Senior Director for Intelligence Programs on the National Security Council staff.
