Editors at National Review Online explain why the FBI’s misconduct in recent years does not lead to inevitable conclusions about the future of surveillance law.
The FBI has conducted itself abysmally, and therefore Section 702 has got to go.
That’s the logic of opponents of reauthorizing the long-standing statutory provision that governs intelligence collection targeting non-Americans outside the United States.
We do not endow federal agents with surveillance powers because they are honorable people who scrupulously follow the letter of the law, though. We grant these powers — the capacity to discover and thwart the machinations of hostile foreign regimes and terrorist organizations — only because they are necessary to protect the United States.
Section 702 was initially enacted in 2008 as a legislative compromise that brought President George W. Bush’s controversial post-9/11 warrantless surveillance program under the 1978 Foreign Intelligence Surveillance Act (that law that originally put domestic intelligence surveillance under the purview of the Foreign Intelligence Surveillance Court).
Intelligence collection is a political responsibility of the government and an executive function that should be aggressively monitored by Congress. It was already clear by 2008 that the judiciary, the nonpolitical branch with no responsibility for national security and no institutional competence in intelligence operations, had limited capacity to conduct effective oversight of the FBI’s domestic monitoring of foreign agents. But Section 702 exacerbated this problem by enmeshing the Foreign Intelligence Surveillance Court in overseas intelligence.
Predictably, the FBI has had noncompliance problems, about which the FISC can do little but grouse while Congress fails in its oversight function.
It’s worth noting that the NSA, not the FBI, is principally responsible for overseas intelligence collection, and the FISC’s annual sign-off on it — part of that 2008 deal — is more a ritual than a true safeguard. Regardless, Section 702 involves monitoring people who have no constitutional rights, in countries where the Fourth Amendment does not apply and the U.S. judicial writ does not run.
