Tom Williams/CQ Roll Call via AP Images
Chairman Sen. Mark Warner (D-VA) makes an opening statement during the Senate Intelligence Committee hearing on worldwide threats, on Capitol Hill in Washington, March 8, 2023.
Since the Bush administration mass surveillance scandal broke in 2005, and the Snowden revelations in 2013, most Americans have been aware that federal law enforcement and intelligence agencies have wide powers to collect text messages, emails, and other private communications, without much in the way of oversight.
Similarly—though this gets less attention—most have probably heard of the ongoing U.S. military presence in Syria, where a tangled civil war has been burning for 12 years now.
There is now some significant bipartisan momentum to roll back both of these elements of the Bush-Obama security state. Section 702 of the Foreign Intelligence Surveillance Act (FISA), one of the most important legal surveillance powers, is up for renewal this year, and a coalition of principled civil libertarians and conservatives angry at the “deep state” are mobilizing to decline to renew it. Meanwhile, Rep. Matt Gaetz (R-FL) introduced a bill this week that would require all American troops to be withdrawn from Syria within 180 days, though it went down in a voice vote on Wednesday afternoon.
Gaetz’s bill was poorly prepared, so another effort may come soon. Yet there will be opposition from both party establishments, and the deep mutual animosity between the loony right and the progressive left will make cooperation difficult.
Republicans had few serious objections to government spying prior to the FBI’s 2016 investigation of any Trump-Russia ties. The post-Snowden surveillance reform that passed in 2015, called the USA Freedom Act, was sponsored by Rep. Jim Sensenbrenner (R-WI), who also sponsored the PATRIOT Act in 2001. But the reform didn’t accomplish much—in particular leaving Section 702 largely intact.
As Matthew Guariglia of the Electronic Frontier Foundation explains, Section 702 is purportedly intended to allow for the surveillance of foreigners, and prohibits intentional spying on Americans. But it also allows for “incidental” collection of American data—as when someone is texting with a foreign person—and only requires executive branch certification to do so. Such data can be widely shared and kept for five years. The various loopholes are so wide that in practice Section 702 gives the FBI, NSA, and other agencies wide latitude to surveil Americans without a warrant.
Indeed, during testimony before the Senate Intelligence Committee Wednesday, FBI Director Christopher Wray admitted that the Bureau had previously purchased open-source surveillance data from private companies (though he said it does not do so currently). As my colleague David Dayen has written, a staggering volume of surveillance data collected by targeted online advertising companies is readily available for the FBI or anyone else to buy—suggesting the need not just for reform of Section 702, but a ban on targeted advertising of any kind.
In any case, conservatives got really energized about surveillance when their own party got swept up in it. Back in 2016, the FBI got four separate FISA warrants to spy on Trump associate Carter Page—part of their broader investigation against the Trump campaign’s ties to Russia, which also targeted then-Trump campaign chairman Paul Manafort, plus Trump associates George Papadopoulos and Michael Flynn.
On surveillance, it would still be good to repeal or restrict Section 702 even if the motivations on the conservative side are bad.
In 2019, Department of Justice Inspector General Michael E. Horowitz released a report on the investigation which found that the FBI had not followed proper procedures in many aspects of the probe, which led to two of the four Page warrants being declared invalid. Conservatives seized on this report to discredit the Trump-Russia story, and further their wild-eyed narrative that he was the victim of a deep-state conspiracy.
This backstory will likely raise suspicions among Democrats. Even if the FBI didn’t follow proper procedures in spying on Page, Trump campaign officials were almost certainly involved in Russia’s hacking of Clinton campaign emails. One might even suspect that the GOP right is attempting to prevent law enforcement from disrupting their next coup attempt. By the same token, the fact that any surveillance reform will require overwhelming support from the furthest-left members of Congress that Republicans despise might give those progressives pause.
The establishment of both parties will be dead set against this reform as well. Dragnet surveillance is still thought to be one of those important powers that Keep Us Safe from the dread terrorist menace. A likely angle of attack will be smearing any reforms as being anti-cop, which the telecom lobby recently used to great effect to shoot down a progressive populist nominee to the Federal Communications Commission.
On the Syria question, it’s less obvious what is motivating Gaetz, though at a guess, it’s likely paleocon “America First” instincts. As Ryan Grim writes at The Intercept, Gaetz characteristically did almost nothing to prepare the groundwork for his bill; potential allies like Just Foreign Policy and Concerned Veterans for America were left flat-footed. The Congressional Progressive Caucus recommended a yes vote, but without a major lobbying push, the bill stood little chance.
Despite all the obstacles, there still may be room for agreement. On surveillance, it would still be good to repeal or restrict Section 702 even if the motivations on the conservative side are bad. It would also be easier since Congress would simply have to fail to pass a renewal rather than get a new law through both the House and the Senate. Besides, even if the authority hadn’t existed back in 2016, the FBI almost certainly would have been able to get a normal warrant to spy on Page (as well as Manafort, Papadopoulos, and Flynn, had they tried), thanks to his extremely suspicious behavior.
On Syria, Gaetz is not wrong to question the point of the ongoing U.S. presence. The involvement of multiple outside powers—the U.S., Russia, Iran, Israel, and others—has primarily served to prolong the fighting and turn Syria into a Thirty Years’ War–esque smoldering hellscape. The explicit motivation for President Obama’s initial intervention, namely to suppress ISIS, has long since been accomplished, with the terrorist group all but defunct. Much like the American occupation of Afghanistan, the Syria intervention is an expensive commitment of forces, halfway around the world, with no clear goal or end point in sight.
Even from a D.C. “Blob” point of view, one could argue that our Syria involvement is undermining the much more logical and justifiable effort to help Ukraine fight off Russian aggression. Those resources would be much better spent cranking out artillery shells, which Ukrainian forces badly need.
At any rate, it remains to be seen whether some bipartisan coalition can be assembled. But it’s not out of the question.
