Analysis In two weeks, a US law authorizing one of Uncle Sam's crucial mass snooping programs will expire.
The man with the power to green-light the surveillance of any individual in the world, as part of said program, appeared in front of the US House Judiciary Committee on Wednesday morning. Such fortunate timing for some much-needed scrutiny into the spying operation.
And so, of course, lawmakers spent most of the three-hour hearing sitting through Deputy Attorney General Rod Rosenstein railing about Hillary Clinton's emails and Robert Mueller's investigation into Russian inference in the 2016 presidential race.
Despite everyone agreeing that section 702 of the FISA Amendments Act is "critically important" and "essential to national security," discussion of the law and its reauthorization took a back seat to partisan name-calling, leaving observers in despair.
"Nadler is asking about Russia stuff and Mueller. So, I'm not gonna live tweet it," sighed the Open Technology Institute's Robyn Greene, referring to Representative Jerrold Nadler (D-NY). Later: "Lamar Smith [R-TX] is asking all about the Special Counsel (Mueller) and Russia investigation. So, no tweets."
The Electronic Frontier Foundation also despaired. And then gave up: "This Judiciary hearing with Deputy AG Rosenstein is very short on substance and we're uninterested in political posturing, so we're calling it a day and going back to our jobs. Thanks for following along!"
There was some discussion of section 702 earlier on, however, especially in the prepared remarks of the committee's chairs, before the whole effort disappeared up the Mueller/Clinton fundament.
All about the warrant
What was most critical was the explicit refusal of the Committee's chair to accept Rosenstein's argument for why warrantless surveillance was needed, with Bob Goodlatte (R-VA) openly shooting down Rosenstein's arguments.
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Asked why the FBI should be able to use FISA – the Foreign Intelligence Surveillance Act – to search for information stored "incidentally" on US citizens without a warrant, under section 702 of that law, Rosenstein gave the following "hypothetical situation": A US city's police department is contacted by a shop clerk who is suspicious of a customer that has ordered a large quantity of hydrogen peroxide…
"Let me interrupt you," Goodlatte jumped in. "This very specific instance has already been cited to us and so we have that very specific protection to our legislation." He went on to repeatedly note that in situations where neither terrorism nor national security were at the root of the concern, then "the American public would expect their civil liberties to be protected" through the long-standing requirement that law enforcement go to a judge, prove probable cause, and get a warrant.
Rosenstein's response was telling.
"What we're trying to avoid here is to re-erect a wall that will prevent the FBI from gaining access to information that might allow them to connect a lead that implicates national security," he argued.
Which has always been the argument of law enforcement: give us access to absolutely everything, via the NSA, because we are protecting you. As countless observers have pointed out, it is the same argument that led to the emergence of the Fourth Amendment, covering unreasonable searches, in the final years of the 18th century.
In fact, there was a certain irony that rather than dig deeper into the issue and force the Deputy Attorney General to explain why what he proposed wasn't obviously unconstitutional, that the hearing veered wildly off into bold assertions about the FBI probe into Clinton's email server, and the propriety of investigators in the Mueller probe because they had sent text messages criticizing President Trump.
The Fourth Amendment resulted from a notorious case in which the King of England demanded that the houses of two individuals thought to be printing pamphlets critical of him and his ministers were raided.
They were subsequently charged with seditious libel but sued for damages claiming the searches were illegal. An English judge – Lord Camden (Charles Pratt) who, incidentally, held pretty much the same office as Rod Rosenstein – agreed.
This is, of course, just the origin of the Fourth Amendment. It has since grown and been interpreted in a much broader context. Nevertheless, it was novel to see members of the House Judiciary Committee complaining about the Fourth Amendment being ignored by the Deputy Attorney General while naming law enforcement individuals in the Clinton and Mueller cases and reading out their private texts, claiming that their contents demonstrated that they were "tainted," "imposing their own political prejudices," exhibiting "extreme bias," and had become "personally invested" in the outcomes of their own investigations.
But back to Section 702.
It expires on the last day of this year, having been in place for 10 years, and has been subject to intense Congressional scrutiny thanks to revelations – sparked by Edward Snowden – that it was being used to engage in mass surveillance of US citizens, despite its explicit focus solely on foreigners.
There are no less than four pieces of legislation before Congress aimed at reauthorizing Section 702, each with various degrees of additional safeguards to limit warrantless spying on US citizens.
The key part in each is that the cops and FBI would require a court-issued warrant – thus demonstrating probable cause – if they want to review the content of communications of a US citizen, except in cases of national security.