The House voted 256-164 on Thursday to reauthorize a surveillance law critical to America’s security for another six years. If the Senate follows up, this will mark a victory for sensible antiterror policy over exaggerated fears on the right and left.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes intelligence agencies to surveil non-U.S. persons who are “reasonably believed” to be located outside the United States. Foreigners don’t enjoy U.S. constitutional protections, and as we have learned the hard way some of them may be plotting attacks on Americans at home or abroad.
Surveillance is an essential U.S. weapon to prevent such attacks, as officials across Democratic and Republican administrations have averred. The House Intelligence Committee notes the law “has been instrumental in preventing numerous acts of terrorism,” including by top Islamic State terrorist Haji Imam.
In 2009 FBI agents in Denver arrested Najibullah Zazi, who was planning to bomb the New York City subway. The Privacy and Civil Liberties Oversight Board, an independent agency within the executive branch, has said that without Section 702 Zazi’s “subway bombing plot might have succeeded.”
The success of tools like 702 has made the terror threat seem less urgent, but it is as dangerous as ever as Islamic State jihadists disperse after their defeat in Syria and Iraq. In October 29-year-old Uzbek immigrant Sayfullo Saipov mowed down eight pedestrians with a truck in Manhattan. ISIS admirer Akayed Ullah tried to blow himself up in a New York subway tunnel in December.
There is no evidence that officials have abused Section 702, and there is multilayered oversight that includes top intelligence officials, Congress and the FISA judges. But the danger is that a left-right coalition in Congress will re-erect barriers between intelligence agencies and law enforcement that led to the failure to detect the 9/11 plot.
Michigan Republican Justin Amash and California Democrat Zoe Lofgren offered an amendment to force agencies to show probable cause to get an order even to query the Section 702 database. They worry the intelligence agencies are using 702 to conduct “backdoor spying” on Americans whose data is incidentally collected through Section 702 surveillance of a foreign suspect.