House Republicans sent a surprising message to the director of the FBI on Monday: cracking down on leaks is every bit as important as investigating connections between Trump campaign officials and Russia. They added an even more surprising threat: if you won’t do the former, we may take away a surveillance law that helps you do the latter.
The tool in question is section 702 of the Foreign Intelligence Surveillance Act, or FISA. It allows the intelligence community to conduct surveillance under warrants approved by the FISA court in cases related to foreign intelligence surveillance targets. FBI director James Comey and others have called section 702 a key tool for intelligence collection, even more important than the bulk metadata collection program (which effectively ended under the USA Freedom Act).
Some aspects of section 702 had already become a target for congressional Republicans worried about surveillance overreach. During a March 1 House Judiciary Committee hearing, Republicans asked whether the collection of intelligence on Trump campaigner Michael Flynn had been appropriate and lawful. They expressed concern that transcripts of a conversation between Flynn and Russian ambassador Sergey Kislyak had been made became public to undermine the Trump administration rather than expose possibly unlawful negotiations with the Kremlin.
At one point during Monday’s hearing, Rep. Trey Gowdy, R-S.C., asked the FBI chief if he could promise that the intelligence community will conduct an investigation into who leaked details about Flynn’s phone call.
“I can’t,” Comey answered.
Gowdy shook his head, looked mournfully into the distance, and said, “One thing we agree on is [that the] dissemination of classified material is a crime.”
He further opined that the FBI’s ability to read classified intelligence gathered under 702 authorities flows from the trust that the American people have in law enforcement, and that the leaking of some details about Flynn’s private conversation jeopardizes that trust.
“This is an agreement between the American people and its government. I’ll bet you my fellow citizens are re-thinking their side of the equation,” he said.
The section is up for reauthorization in the fall.
It’s unclear whether Flynn was the subject of a FISA warrant. His conversation with Kislyak may have been picked up during a more routine collection of evidence against the Russian official.
Comey seemed to say as much. “This conversation has nothing to do with 702,” he said. That’s because 702 is “about targeting non-US persons overseas, pursuant to the FISA statute. The FBI can apply to conduct surveillance in the United States, but it’s a different thing from 702.”
Gowdy agreed but then suggested that Congress might not renew 702 unless the FBI started cracking down on leakers.
“You’re right, they’re different,” he said. “You and I both want to see reauthorized. It is in jeopardy if we don’t get this resolved.”
The bottom line: Gowdy is holding an important investigative tool hostage as a negotiation tactic.
“You can see [House Republicans] are starting to get nervous,” said Mieke Eoyang, vice president of the national security program at the centrist Third Way think tank. Some of that nervousness was justified, she said: “Even when the foreign end is targeted, you have to think about what constitutional protections exist for the person on the other end of the line.”
Eoyang was unsurprised at Gowdy’s tactic. “As a general matter, the House likes to hold things hostage until it gets its way. It’s a default legislative strategy,” she said.
While 702 is expansive, and could benefit from careful analysis and reform, “that’s separate from the question of…extra penalties for leaking information” that law enforcement has gathered under 702 authorities, she said.
Don’t worry. She thinks it’s mostly a bluff: “I don’t believe there’s a world in which 702 just expires.”
Eoyang called Gowdy’s thinly veiled threat an example of the negotiation stance that the Republicans would use in the months ahead.
“A lot of the small-government Republicans get very worried about a Big Brother government with broad authorities,” she said. “They feel like 702 is too big a tool. That brings a right-left coalition together.”
While 702 is likely to be reauthorized, it’s not guaranteed, so long as House members are using it as a football. In a worst-case scenario, the simple existence of an investigation into foreign corruption—and aspects of that investigation coming to public attention—could hinder the ability of the intelligence community to conduct such investigations. This would be counterproductive to efforts to actually fighting foreign corruption.