Editors at National Review Online urge Congress to approve legislation that helps the federal government fight terrorism.
Here we go again: Congress is voting imminently on whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which President Trump supports. Without reauthorization, the program would expire on April 20, placing a key anti-terrorism tool in legal limbo. Congress should vote to keep it in place.
We have supported the executive branch surveillance powers that are governed by Section 702 since its enactment in 2008. Before that, we supported the predecessor surveillance programs since their origins after September 11 — powers with roots dating back to the dawn of the Republic. Section 702 surveillance is also used for counterintelligence and interdiction of drug trafficking and human trafficking. The threat of international terrorism may not be as visible and visceral to the public as it was 25 years ago, but with the United States currently at war with the leading state sponsor of terrorism, this would be an especially inopportune time to let the legal authority for this crucial function lapse.
To recap: Surveillance targeting Americans, or targeting foreign civilians within the United States, is covered by the protections of the Fourth Amendment. (This may not be the case for foreign diplomats, spies, and other foreign government agents.) It therefore requires either a warrant or the availability of a judicially recognized exception to the warrant requirement. Nothing in Section 702 deals with those areas of surveillance — it addresses only surveillance targeting foreigners outside the United States, who have no rights protected by our Constitution.
Prior to 2008, such surveillance was conducted — largely by the National Security Agency — on the basis of the president’s Article II national security powers. Section 702 did not create those powers, but it subjected them to periodic judicial review and other legal strictures.
