Trump Favors Making Section 702 Permanent

Stan Ward

Stan Ward

June 13, 2017

When it comes to government snooping and abuse of surveillance powers, President Donald Trump is at his enigmatic, puzzling, and contradictory best. He decried unbridled government spying during the election campaign and then more recently accused the Obama administration of illegally spying on him during the transition of power.

The president now appears not only to support extending the soon-to-expire, contentious Section 702 of FISA, but also making it permanent. His many adversaries on the other side of the political spectrum have pointed out this hypocrisy, and the fact that he also railed against “illegal” surveillance by President Obama just months before.

President Trump and his cohorts argue that not extending Section 702 would handcuff law enforcement in their pursuit of bad actors. They contend that hundreds, if not thousands, of lives have been saved because the US collected and shared 702 information with European allies, heading off imminent attacks.

For instance, it might surface that the teeth in this provision may have thwarted a terrorist bombing of the New York City subway system some years ago. Other such examples of the Section’s efficacy were also cited.

Without congressional action, Section 702 is set to expire on 31 December 2017. However, with a Republican-controlled Congress all revved up to extend it, and with an eager GOP President in the Oval Office even more stridently in favor of it, an extension is a foregone conclusion. The reasoning behind Trump’s about-face is simple – he and others believe that its benefits outweigh the occasional overreach of its powers.

“Simply put, the use of this authority has helped save lives,” Thomas P. Bossert, President Trump’s top counterterrorism adviser, wrote in an op-ed in The New York Times, announcing support for a bill introduced this week making the snooping powers permanent.

In the upper chamber of the Congress, Sen. Rand Paul (R-KY) expressed dissatisfaction, saying that the 702 provision was “a backdoor search of Americans” in a March CBS interview. There are also other factors to consider.

I wrote last week about the worry and anger that some in government have over the tsunami of leaks, and that maybe millions of innocent citizens are being caught up in the type of mass-surveillance engendered in Section 702. This occurred, and is occurring, despite the fact that Section 702 is aimed at foreigners and their correspondence – not Americans.

In regard to this, a senior member of the House Intelligence Committee, Trey Gowdy (R-SC) recently offered,

We are not going to reauthorize these surveillance programs if the American people are not satisfied that their security is going to be safeguarded.

Perhaps millions of ordinary Americans are being ensnared in what is termed “incidental collection.” Indeed, About 10% (of perhaps a billion or more) of conversations monitored end up with an incidental collection, NSA Director Mike Rogers testified to Congress last week.

Most remain anonymous, unless “unmasked.” Some are unmasked for political reasons – as President Trump has alleged regarding the unmasking of some of his appointees by the outgoing Obama administration.

However, with the President – the de facto head of the GOP – embracing the surveillance measure, it is more than likely everyone will fall into line behind it. But as I pointed out last week, bi-partisan support may be necessary if, in fact, the Republicans don’t fall into line. I must point out that an endorsement from this president – a polarizing figure even in his own party – may work in favor of not extending the law. We’ll wait and see how that plays out.

The extension of 702 is not just the  wish of the national security hawks on the GOP side. Prominent Democrat, Sen. Diane Feinstein (D-CA), is angling for the provision not to sunset. This position is not shared by a majority of her Democratic colleagues in either chamber, however, who at least want assurances that in the future innocent American citizens’ communications won’t be scooped up.  What are the chances of this happening?

NSA Director Rogers chimed in again, reminding anyone who would listen, that the NSA is required to report any criminal or dangerous information collected on Americans, and can hang on to anything it deems important for intelligence purposes. Other than that, it must purge incidental collection that snags Americans’ communications.

This stance basically says that if you’ve done nothing wrong, and thus have nothing to hide, you shouldn’t be worried. This won’t mollify privacy advocates, who are only too aware of how the government has incrementally expanded its snooping powers since legislation was enacted following 9/11.

Since it appears that Section 702 is going to be around a while longer, given the political climate in Washington, it would be great if a compromise could be reached. For example, rather than make it a permanent law, another date for sunsetting could be set, when this issue can be revisited in less contentious times.

However, compromise is not a word very well understood in politics – much less employed – since President Clinton’s presidency in the 1990s. That’s too bad, because it is the average citizen who is once again a target of the government’s surveillance overreach. And it is the ordinary Joe who will bear its brunt.

Image credit: By Robert F. Balazik/
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