ACLU is celebrating the 15th anniversary of the Foreign Intelligence Surveillance Act (FISA) amendments by highlighting a floor statement President Joe Biden made as a U.S. Senator in 2008.
In his Congressional Record submission, Sen. Biden declared the measure that we would come to know as Section 702 as “constitutionally infirm.” He voted against it. Sen. Biden’s words would be a better guide to President Biden’s surveillance policies than those advocated by his appointees and representatives today.
For months now, the administration’s representatives on Capitol Hill have argued that Section 702 of FISA should be reauthorized without changes or reforms. FBI Director Christopher Wray and others have, with the backing of the president, made this case even though, by the administration’s own admission, this authority meant by Congress to authorize surveillance of foreigners located abroad has been used in 246,000 targeted searches of Americans’ communications.
While we should not uncritically accept the government’s numbers, and the definitions and assurances behind it, let’s take the government’s number as a minimum. The question remains why the government believes 246,000 violations of Americans’ civil liberties is acceptable. That number constitutes millions of civil rights violations in a few years and more violations than there are people in a sizable city, say, Richmond, Virginia.
As a U.S. Senator, Joe Biden foresaw problems with Section 702. He complained that the law authorized only weak judicial oversight by the FISA Court, beholden to the good faith of executive branch officials. Sen. Biden said the Attorney General and the Director of National Intelligence would certify after the fact to the FISA court that they had good reason to believe targets were located outside of the United States, “regardless of how many calls to innocent American citizens inside the United States were intercepted in the process.”
“This would be a breathtaking and unconstitutional expansion of the President’s powers,” Sen. Biden said. Now those powers are in the hands of President Joe Biden.
As senator, Joe Biden set out an overarching principle we’d all be wise to remember:
“One of the defining challenges of our age is to combat international terrorism while maintaining our national values and our commitment to the rule of law and individual rights. These two obligations are not mutually exclusive. Indeed, they reinforce each other.”
PPSA has been hearing as much from Congressional leaders, from Democrats as well as Republicans.
Our point is not to slam Joe Biden for inconsistency, but to sharpen the debate for Members of Congress. The president was right the first time: We can have protection from terrorists and spies without jettisoning our civil rights. We can reform Section 702 so it will work within the guardrails of the Constitution.