Jack Goldsmith and Susan Hennessey on Lawfare have a response to the concerns some privacy and civil rights advocates have about the update to FISA‘s section 702:
No member of Congress has been more critical of President Trump’s rule-of-law difficulties than [Rep. Adam Schiff]. He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be critical of intelligence community practices when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is. He and the other Democrats who support reauthorization, and the many Republicans who worry a lot about President Trump yet support reauthorization, have a high degree of confidence that the National Security Agency and the U.S. intelligence community more broadly cannot and will not abuse the 702 tool even if they harbor concerns that Trump might desire to do so. They know that 702 is deeply embedded in a reticulate legal system run mostly by career public servants and supervised by all three branches of government, including numerous agencies in the executive branch, the congressional intelligence committees and the life-tenured members of the FISA court. In short, the answer to Greenwald’s puzzle about Trump critics voting for 702 reauthorization is that the NSA and FBI are remarkably immune from inappropriate presidential meddling.
Which is interesting, if not organic, by which I mean they’re relying on another authority to prove their point, rather than proving it from the substance of section 702. Given that it would undoubtedly be in unintelligible (for me) legalese, I’m not precisely dismissive of Jack and Susan, simply a trifle uncomfortable – which is the inevitable role of the interested, but uninitiated, audience. They go on:
When Sen. Elizabeth Warren points to the surveillance abuses directed at Martin Luther King Jr. to argue against 702, she actually highlights the opposite point: the massive transparency, both voluntary and involuntary, over the past few years about how Section 702 operates shows that it has not been abused for domestic political spying and implies that the 40 years of post-Hoover legal reforms are largely a success (though not without hiccups). The fact that President Trump has not focused his abusive energies on intelligence collection is a testament to the efficacy of the legal and cultural constraints on electronic surveillance. Instead, Trump has, as our colleague Benjamin Wittes predicted long ago, focused those energies on trying to manipulate Justice Department law enforcement practices, where the fabric of regulation guaranteeing independence from political manipulation is much less dense.
It’s always fun to use someone’s words against them. The following paragraph, though, sort of highlights one of the more uncomfortably extreme possibilities of Trump’s occupancy of the Oval Office:
Another testament to the value and integrity of Section 702 is that the democratic process worked well despite irresponsible interference from the top of the executive branch. Ordinarily, the president is a crucial champion of surveillance authorities. President Trump, however, offered gift after gift to Section 702 opponents. In promulgating falsehoods about how the program worked and about how his predecessors used surveillance tools more generally, and in continually insulting and undermining the intelligence community, Trump harmed his national security team’s reauthorization efforts. His unpresidential behavior culminated in a rogue tweet last week the morning the House was set to take up the bill, setting his aides and members of Congress scrambling to do damage control and to explain to the commander in chief that he was tweeting against his own administration’s position. In the past, passing major surveillance legislation has required an all-executive push. The fact that it managed to succeed this time, despite the president effectively pushing in the other direction, says something about the intensity and unity of the belief across the executive branch about the program’s value and legitimacy.
The image of a thoughtful, serious President.
And leaves me wondering if that rogue tweet really was a rogue tweet, or a subtle attempt to disassemble the national security apparatus which is just one part of the national defense strategy assembled by conventional Republicans and Democrats over the last few decades. I’d prefer to think it was simply a paranoid, amateur President shooting his damn-fool mouth off once again.
Still, not being conversant with legalese nor the entire FISA landscape – that’s why we have Congresscritters, but need them to be responsible compromisers, not ideological assholes – I have no real opinion on the matter. Jack and Susan’s point concerning the sunset clause (not quoted), however, strikes me as being exceedingly wise and sensitive to the illegal surveillance debacles undertaken by the state security apparatus controlled by Hoover. If the rest of the bill – or at least section 702 – is as carefully considered as is the sunset clause, then we may be on the right track.
