The lack of FISA reform stemmed from the fundamental purpose of Section 702: surveilling American citizens

A group of 19 Republican lawmakers on Wednesday joined with Democrats to block a bill that would have reauthorized the federal government’s spying authority with a few minor tweaks. At issue is Section 702 of the Foreign Intelligence Surveillance Act, which allows warrantless surveillance of foreigners but is also routinely used to spy on American citizens.

As it stands now, the law, which is set to expire April 19, allows U.S. intelligence agencies to spy on foreign nationals based overseas, but it also lets the FBI comb through the massive amounts of data the intelligence community collects and gather information about American citizens. These are known as “backdoor searches,” and an unlikely coalition of conservative Republicans and left-wing Democrats want to change how these searches are conducted.

Specifically, they want to require that the FBI obtain a warrant before searching Section 702 data for information about Americans — a reasonable reform. The intelligence community, and the members of the House Intelligence Committee over whom they have influence, oppose this.

Why? The most straightforward answer is that the main purpose of the intelligence community’s surveillance programs isn’t to spy on terrorists or foreign adversaries overseas, it’s to spy on American citizens. So of course the intelligence community opposes FISA reforms that would make it harder to spy on Americans.

Whatever the original justification of Section 702 was — in the wake of 9/11, the intelligence community argued that massive government surveillance capabilities were necessary to keep Americans safe from terrorist attacks — the purpose of it now is to enable the FBI to surveil Americans, especially Americans who express views and opinions the government deems to be a threat.

In an earlier era, this warrantless spying would have been understood as a clear violation of Americans’ constitutional rights (specifically our Fourth Amendment rights). But we’re in a new era now, and the intelligence agencies have no qualms about violating our rights without pretending it has anything to do with national security.

They also have no qualms about openly defying efforts to reform their ability to spy on Americans. In a widely circulated thread on X, Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice, detailed the efforts of lawmakers on the right and left to propose reasonable reforms to Section 702, including not just a warrant requirement but also closing the data broker loophole, which allows government agencies to purchase Americans’ data from brokers.

But the intelligence community and the lawmakers on the Intelligence Committee dug in their heels, rejecting multiple compromise reform bills. These bills, wrote Goitein, “would have passed if IC/intel committees were willing to concede that Section 702 should not be used as a means of warrantlessly accessing Americans’ communications.” But rather than bring one of these bills to the House floor, Speaker Mike Johnson went with a bill backed by the intelligence agencies “that masquerades as reform but is carefully designed to preserve the status quo when it comes to backdoor searches.”

The reformers were willing to go along with this bill if they could offer amendments to prevent backdoor searches and close the data broker loophole, but Speaker Johnson thwarted attempts to amend the bill, which triggered the Republican defection and killed the bill.

How bad is warrantless spying by our government? Pretty bad. Last April, Inspector General Michael Horowitz testified that in 2021 (the most recent year for which data is available) U.S. intelligence agencies made more than 3.4 million search queries of the NSA database and that of these, about 30 percent were “non-compliant searches,” which means they fell outside the normal rules and regulations. In other words, they were illegal. Horowitz also revealed that the number of federal government employees who have the ability to conduct these illegal searches is more than 10,000.

But that’s not all. As the X account @TheLastRefuge noted, from November 2015 to May 2016, the FBI and contractors for the DOJ/FBI conducted more than 1,000 illegal searches targeting Republican primary candidates.

Under these circumstances, it’s entirely reasonable to ask for reforms to Section 702 to ensure that Americans’ Fourth Amendment rights are not violated, or that the intelligence community is not weaponized against democracy itself, as it clearly has been.

But again, don’t expect Speaker Johnson or members of the Intelligence Committee, much less the intelligence community itself, to see it that way. They don’t want to reform Section 702 because they use it to spy on Americans all the time.

An even more cynical view of all this would be what Darryl Cooper (@MartyrMade) said on X: “The FISA system is not meant to stop the intelligence community from inappropriately spying on us, which they’ll do with or without it. FISA is there to give the intelligence community legal and political cover when they get caught.”

It’s time for ordinary Americans to wake up and realize what our government is doing to us. Under the pretext of keeping us safe from foreign terrorists, the intelligence community has erected a vast surveillance apparatus that targets American citizens — and it will not under any circumstances allow that apparatus to be reformed.

Which is why it should be dismantled completely.