Surveillance uproar puts GOP on the spot

Surveillance uproar puts GOP on the spot

The political firestorm around incidental surveillance of President Trump’s transition team has put Republican supporters of a controversial spying law in a tricky position.

Section 702 of the Foreign Intelligence Surveillance Act (FISA), due to expire this year, was thought to be on a comparatively smooth road to reauthorization.

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But the surveillance and exposure of former national security adviser Michael Flynn’s phone call with a Russian ambassador — and the revelation that Obama administration national security adviser Susan Rice sought to learn the identities of Trump campaign officials whose names were redacted in surveillance reports — seems to have put the straight reauthorization of the law in danger.

“You and I both want to see [702] reauthorized,” Rep. Trey GowdyHarold (Trey) Watson GowdyControversial ‘hack back’ bill gains supporters despite critics Top Oversight Dem pushes back on Uranium One probe Overnight Cybersecurity: Manafort, Gates to remain under house arrest | Mueller said to be closing in on Flynn | 'Hack back' bill gains steam | Election security gets attention from DHS MORE (R-S.C.), who sits on both committees of jurisdiction, Judiciary and Intelligence, told FBI Director James Comey at a recent hearing. “It is in jeopardy if we don’t get this resolved.”

Longtime Republican supporters of the law have found themselves walking a tightrope, decrying what they see as abuse of Americans’ privacy under the law without imperiling its reauthorization.

The provision allows intelligence officials to monitor the communications of foreigners overseas.

But law enforcement agencies such as the FBI can also access U.S. citizens’ communications swept up incidentally in the surveillance of foreign officials — without a warrant — and then use that information to initiate a criminal proceeding.

Civil liberties advocates from both sides of the aisle have long argued that this loophole contradicts the Fourth Amendment, but their opposition was never enough to overcome support for the authority.

Muddying the waters, it’s unlikely Flynn’s communications were actually collected under 702, because the Russian ambassador he reportedly spoke with was likely in the United States at the time. The surveillance provision only applies to overseas collection.

Nevertheless, senior lawmakers have suggested the Flynn controversy has given real ammunition to supporters of surveillance reforms.

Last month, House Judiciary Committee Chairman Bob GoodlatteRobert (Bob) William GoodlatteJuan Williams: The shame of Trump's enablers GOP bill would ban abortions when heartbeat is detected Overnight Regulation: GOP flexes power over consumer agency | Trump lets states expand drone use | Senate panel advances controversial EPA pick | House passes bill to curb 'sue-and-settle' regs MORE (R-Va.), along with Gowdy and Rep. Louie GohmertLouis (Louie) Buller GohmertGOP lawmaker calls for Mueller to be fired in speech on House floor GOP lawmaker calls for Mueller recusal over uranium deal Overnight Finance: Freedom Caucus chair courts Dems on tax reform | House passes .5B disaster relief package | House GOP worries about budget's fate in Senate MORE (R-Texas), sent a letter to intelligence community heads urging them to publicly defend Section 702.

Citing media leaks of classified information — an apparent allusion to the Flynn call — they warned that “many members of Congress are distrustful of these capabilities and fear the consequences if wrongdoers within the government continue to disseminate information feloniously.”

Critics of the law hope they will be able to harness the Republican outrage about Flynn and Rice to pass stronger privacy protections for Americans.

The issue has made strange bedfellows of privacy-focused Democrats and libertarian-leaning Republicans. “Civil liberties is one of those issues where you’re so right, you’re left,” said one House aide.

Sen. Ron WydenRonald (Ron) Lee WydenLobbying World Overnight Regulation: House to vote on repealing joint-employer rule | EPA won't say which areas don't meet Obama smog rule | Lawmakers urge regulators to reject Perry plan New tax plan will hinder care for older Americans MORE (D-Ore.), a member of the Intelligence Committee, has used the controversy to reignite calls for a public accounting of the number of Americans caught up in Section 702 surveillance.

“I can tell you there’s going to be a whole host of issues associated with reauthorization of FISA for the committee to even get started on a debate,” Wyden told reporters Monday evening.

Sen. Rand PaulRandal (Rand) Howard PaulGOP senator asks to be taken off Moore fundraising appeals Red state lawmakers find blue state piggy bank Prosecutors tell Paul to expect federal charges against attacker: report MORE (R-Ky.), meanwhile, seized on the allegations that Rice improperly “unmasked” Trump campaign members to emphasize the need for FISA reform — including Section 702.

“There needs to be reform of this process. What’s to stop people from unmasking people and blackmailing them over personal aspects of their lives?” Paul told reporters on Monday, signaling that he is considering legislation that would increase controls over the authority to request and approve unmasking.

The senator said it should be illegal to listen to Americans’ conversations without a warrant.

“A million Americans are caught up in these incidental conversations, and they’re not so incidental if they’re you. I think every time we use the word ‘incidental,’ we say this is no big deal. This is an enormous deal.”

Civil liberties and privacy groups who have railed against Section 702 say they’ve been vindicated by the outrage expressed by House Intelligence Committee Chairman Devin Nunes (R-Calif.) at the incidental collection of Trump associates’ communications. He has long been a strong advocate for the program.

Nunes said in February that it was a “big problem” that Flynn had his phone calls recorded and later expressed concerns that Trump transition officials may have been unmasked in intelligence reports when the chairman made his bombshell revelation about incidental collection in March.

He has also publicly expressed concerns that the revelations are a danger to a clean reauthorization of Section 702.

“I think right now anyone who is going to call for a clean reauthorization but has complained about these things would not have much credibility in doing so,” said Jake Laperruque, senior counsel at the Constitution Project, which is advocating for reform.

“Section 702 is all of the concerns that the White House and that Chairman Nunes have raised on steroids.”

Still, key Republicans do not appear to have changed their underlying support for the provision. Even as Nunes has warned of abuse of incidentally collected information, House Intelligence Committee members say they have seen no sign he is rethinking his strong support for the law. 

Some onlookers tracking the issue are skeptical that the sudden interest in incidental collection and unmasking will change any votes on Section 702, especially since it doesn’t sunset until the end of the year.

“If I was going to put my own money on it, I think they’re going to come home and do what they’ve always done,” said one House aide who works on the issue.

“I don’t think you’re going to have these hardliner national security Republicans say, just because Flynn’s phone calls got caught up, we need to rethink how we do all this stuff.”