Before leaving town for the 2023 end-of-year holidays, Congress managed to avoid a 12:01am January 1, 2024 expiration of Section 702 of the Foreign Intelligence Surveillance Act (FISA).
It began life in a totally unregulated form as a component of President George W. Bush’s unconstitutional STELLAR WIND electronic mass surveillance program. After the New York Times exposed STELLAR WIND in December 2005, Congress spent more than two years trying to make the illegal program, well, legal. The result was the 2008 FISA Amendments Act, of which Section 702 is the key component.
Simply stated, FISA Section 702 allows the federal government to intercept communications passing through the global telecommunications infrastructure. While the program is ostensibly designed not to deliberately target Americans, in actual practice the text messages, emails, phone calls, and other digital data created or transmitted by Americans are routinely swept up in this electronic dragnet.
In prior years, it meant that millions of Americans had their digital communications captured, stored, and searched as a result of FISA Section 702 collection. On December 5, FBI Director Christopher Wray claimed to the Senate Judiciary Committee that all of that has changed, but most Senators weren’t buying it, especially Senator Mike Lee (R-UT).
Because of the ongoing controversy over Section 702, many wonder whether it will be renewed at all, or in significantly modified form. The battle between the House Judiciary and Intelligence Committees over the issue resulted in competing bills, neither of which made it to the House floor after Speaker Johnson pulled both off the House calendar.
A temporary extension of Section 702, expiring on April 19, 2024, was tacked onto the annual National Defense Authorization Act and passed both chambers before the adjournment of the First Session of the 118th Congress. The Section 702 legislative fight rematch between surveillance reformers and national security hawks will resume in the new year.
If these were normal political times – by which I mean the pre-Trump era – such a debate would matter. But these are not normal times, and the question every American should be asking is this: should any chief executive have this kind of surveillance power at their disposal?
Over the last several months, there’s been extensive coverage on what former President Trump intends to do if re-elected in 2024. A declared presidential candidate who talks openly about a “revenge tour” and firing thousands – perhaps tens of thousands – of federal workers would no doubt wish to avail himself of the very investigative and surveillance tools that were used to target at least one person connected to his first presidential campaign.
If Trump does win and makes good on his promises to cleanse the “deep state” of his enemies and repopulate it with loyalists, exactly what or who could stop him from employing the sweeping and powerful investigative and spying tools used by the FBI, NSA, CIA, and other federal agencies against his political opponents?
Nothing.
Would a Trump loyalist attorney general order a Trump loyalist FBI director to take him into custody if a federal court ruled Trump had violated a surveillance law? No.
Would a Trump loyalist Defense Secretary dispatch troops to arrest him if Justice Department officials refused to do so? No.
Would a Trump loyalist Homeland Security Secretary tell Trump’s Secret Service detail to detain him pending arraignment? No.
Would Supreme Court Chief Justice John Roberts have the authority, much less the armed and sworn law enforcement personnel, to order Trump detained on federal charges? No.
I’ve repeatedly mentioned former President Trump because he is a declared candidate and the current odds-on favorite to again secure the GOP presidential nomination. I’ve also mentioned him because during the last few months of his Administration, he did indeed fire officials who did not support his version of events regarding the 2020 election or who refused to consider using troops against protesters. His past actions make his current rhetoric a potential harbinger of threats to individual liberty and the constitutional order should he be reelected.
But my analysis and scenarios are applicable to any would-be authoritarian president from any political party who could pose a threat to the very survival of the American republic. And that’s why quaint, arcane debates about FISA Section 702 only serve to obscure the vastly larger, infinitely more politically lethal threat to our nearly two-and-a-half century experiment in representative government.
No matter the outcome of the FISA Section 702 battle in Congress, the reality is that the post-9/11 surveillance wars are over and we, the people, lost. The PATRIOT Act is permanent law. If the FISA Section 702 program expires, it could be replaced and revived via executive order.
The American Surveillance State is, at present, a fixed reality–a tool that in the hands of a vengeful despot will make possible a veritable turnkey tyranny overnight. Avoiding that outcome should be the only thing any of us with a commitment to individual liberty should care about in the new year and in the years that follow.
Former CIA analyst and ex-House senior policy advisor Patrick G. Eddington is a senior fellow at the Cato Institute.
