Trump’s FISA Attack Is Incoherent

Former president Donald Trump speaks during a rally ahead of the midterm elections, in Minden, Nev., October 8, 2022.

Flashing his inimitable combination of self-absorption and policy incoherence, the presumptive Republican presidential nominee helped tank the congressional reauthorization of an essential safeguard against anti-American regimes and foreign terrorists.

Former President Donald Trump took to his soapbox, Truth Social, to trash a bipartisan deal to renew our nation’s statutory power to conduct surveillance against hostile foreign agents outside the United States: “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!”

Where to begin? The provision of the Foreign Intelligence Surveillance Act (FISA) at issue is not the one exploited by Obama-era FBI leadership, in collusion with the Hillary Clinton campaign, to smear Trump as a Putin puppet. That statute was the original FISA — the process enacted in 1978 to compel the FBI to seek a warrant from a specialized Foreign Intelligence Surveillance Court (FISC) before monitoring the communications of suspected agents of foreign powers (whether aliens or Americans) who were conducting clandestine activities inside the United States. This original FISA process was shamefully used to obtain warrants against Carter Page, a Trump campaign adviser, based on bogus allegations that he — and, derivatively, the Trump campaign — were agents of the Kremlin.

Section 702, the surveillance authority that will lapse if Congress fails to renew it, is a different animal. It allows American intelligence agencies to surveil non-Americans reasonably believed to be outside the United States. This is just traditional spying, and conducting it is common sense, if only to defend against the aggressive anti-American operations of Chinese, Russian, and other skilled foreign intelligence services. Yes, intelligence agencies should be zealously overseen by Congress, but it is still an oddity that surveillance of non-Americans outside the United States (i.e., outside the jurisdiction of American law) calls for statutory authorization at all, let alone for approval by a domestic federal court.

Nevertheless, every few years, Congress is called on to reauthorize Section 702, which mandates that the intelligence agencies obtain generalized FISC approval for massive surveillance programs. The NSA conducts the monitoring, and the vast majority of these programs are run by our foreign intelligence services, mainly the CIA, which are not permitted to operate domestically. A small percentage of the foreign surveillance is carried out at the behest of the FBI, the nation’s chief federal police agency, which doubles as our domestic-security service.

The allegations against Section 702 by Trump and a mix of populist, libertarian, and leftist critics are mostly bogus. The statute explicitly prohibits targeting Americans for surveillance — including by indirection (i.e., targeting non-Americans only as a pretext to spy on Americans with whom the foreigners are in contact).

Are Americans nevertheless intercepted in foreign-surveillance operations? Of course they are, incidentally. That is a fact of all policing. When cops monitor a street gang, they unavoidably observe the activities of non-suspects. When DEA wiretaps a drug lord, it unavoidably intercepts conversations of family members and other bystanders. These incidental consequences are factored into statutory and court-prescribed “minimization” limitations on their use and retention. Similarly, the communications of Americans are incidentally monitored in foreign surveillance, and are stored in a database.

Section 702 opponents want to require the FBI to obtain a search warrant anytime they seek to probe the database for information about an American, claiming the Fourth Amendment requires it. This is a specious claim. The communications in the database were already seized under an appropriate legal process, targeting Americans outside the United States who do not have Fourth Amendment rights. And in the only situation in which the Constitution would require court approval, Section 702 already mandates it: If agents want to search the database for evidence that an American has committed a crime — i.e., not for foreign intelligence purposes — they must get a court order based on probable cause, just as they would in domestic law enforcement.

Most of the time, however, when the FBI seeks to search the database, it is because foreign agents are plotting against Americans. A warrant requirement would only delay access to intelligence that should be readily accessible. This would intolerably increase the danger that terrorist plots will lead to terrorist attacks, and the potential that Americans targeted by hackers and other foreign cyber-operatives will suffer irreparable harm.

To be sure, there have been instances of FBI abuse of the system. The fact that those instances have been reported indicates that Section 702 oversight is effective. Still, each abuse is worrisome. Fortunately, the FISC has acknowledged that FBI reforms — many implemented during the Trump era — have dramatically driven down episodes of improper database searches. The Section 702 legislation now up for renewal incorporates these reforms so they are now statutorily required.

Just as important, in addition to heightening the approval levels required before an agent may access the database for U.S. person inquiries, the reauthorization legislation prescribes significant criminal penalties for American officials who abuse their powers to illegally spy on, or disclose database information about, Americans.

To let expire or nullify foreign surveillance powers that are essential to national security would be the height of recklessness, particularly in a moment when China menaces Taiwan, Russia wages a war of conquest in Europe, Iranian proxies have carried out scores of attacks against U.S. forces, and a foreign terrorist organization is detaining American hostages in its barbaric war against Israel. Donald Trump is right to inveigh against President Biden’s failure to secure the southern border. But there’s much more to securing the homeland and American interests than the border, and if “KILL FISA” means “repeal Section 702,” that would be equally reprehensible.

More on National Review