When spy novelist John le Carré left MI-6 to become a writer, he said that he had resolved to have “nothing to do with the intelligence world.” Would that the same could be said of former intelligence community lawyers. During the relative quiet of August, attorneys who once served the alphabet soup of agencies – NSA, NSC, CIA – have been busy posting pieces and writing op-eds why Congressional reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) should be passed with minimal changes. If Congress amends Section 702 with a warrant requirement to spy on the communications of American citizens, they tell us, the nation will be in peril.
Civil libertarians are responding with vigor.
Witness the incisive piece by Patrick Toomey, Sarah Taitz, and Kia Hamadanchy of the American Civil Liberties Union in the online journal justsecurity.org, a clear-eyed response to all the recent fearmongering by this intelligence community campaign. Toomey and his colleagues offer a wide-ranging survey of Section 702 and the dangers posed by how it is used in a way that is both deep and accessible.
The ACLU hits the main point early and with great clarity:
“If the purpose of Section 702 is to ‘target’ foreigners for intelligence gathering, then officials should have no qualms about imposing robust safeguards for Americans … but for too long, officials have tried to have it both ways – claiming that the law was not intended to spy on Americans, while using Section 702 to do just that.”
ACLU more than amply demonstrates that Section 702 has become a “domestic surveillance tool, with agents and analysts routinely searching through the enormous pool of collected data for the private communications of Americans.” ACLU adds: “With that fact finally in the open, the rules written into the law should reflect the bedrock protections the Constitution requires.”
This strong piece is a welcome rejoinder. As Congress prepares to return in September, defenders of the surveillance status quo have been busy warning that a warrant requirement of Section 702 would allow Chinese and Russian agents to run rampant, or that warrants would hobble law enforcement, drowning the nation in fentanyl.
The ACLU’s recent piece is a sign, however, that champions of reforms are not going to let up in our corrections and rebuttals. Our coalition of civil liberties groups will be briefing leading newspapers and their editorial boards. We are reaching out to reporters to correct misleading claims and steer journalists to the right information. And we will continue to update our resource on Section 702, fisareform.org.
Intelligence community disinformation is, as they say, a target-rich environment. We act in the confidence that the case for warrants and other reforms will be matters of common sense and bedrock American principles for Members of Congress and their constituents.