Republicans have had a crash course since 2016 in the ways the power of the intelligence community can be abused. To take a few examples, four consecutive judges operating under the Foreign Intelligence Surveillance Act (FISA) approved wiretaps of a Trump adviser, Carter Page, relying without question on the partisan fictions of the Steele dossier. Michael Flynn was ousted after he was the target of an unprecedented leak of another FISA intercept. And 51 former intelligence officers intervened in the 2020 election to dismiss without evidence the Hunter Biden laptop contents as likely Russian disinformation.
Now a major intelligence program—section 702 of FISA—is expiring by the end of the year, and Republicans in Congress, who have long supplied a voting majority for renewal of the program, are asking how to square that support with the lessons of the last seven years.
- Warrants wouldn’t address the partisan abuses we’ve seen in recent years.
- A warrant requirement defies decades of law and practice.
- Imposing one would cripple national security in a way reminiscent of our failures before 9/11.
Mrs. Goodlatte and Silver say that not getting a warrant to search the 702 data for information about Americans “effectively discards the Fourth Amendment.” But, as court after court has held, the Fourth Amendment doesn’t require the government to get a warrant before it reviews information it has already collected lawfully. Such “warrantless” searches occur every day in ordinary criminal cases, when police review information obtained from one suspect (with or without a court order) to find evidence relevant to a different investigation.
Almost worse, the warrant requirement doesn’t fit at all with one of the most common uses of the database—FBI searches to identify American victims of ransomware, cyberespionage, and the kind of foreign government assassination and coercion attempts we’ve seen from China and Iran. Speaking for ourselves, we won’t thank any Republicans who vote to make it harder for the FBI to notify us if we’re on the receiving end of such threats.
Finally, by joining a coalition dominated by progressives, Mrs. Goodlatte and Silver would trade away measures that could directly address the abuses of the last several years. Those on the left aren’t likely to support a ban on government monitoring of domestic “disinformation,” more accountability for partisan abusers of FISA like the Carter Page scandal and the Flynn transcript leaker, a repeal of the prong of FISA used to target Page, or measures to stop former intelligence officials from trading on their credentials for partisan purposes. Unlike the Goodlatte-Silver proposals, those far-reaching reforms won’t cripple national security, but they will make a real difference—and will only become law if conservatives insist on them as the price for renewing 702. That’s a goal that is within reach this year. Conservatives shouldn’t throw it away in service to priorities set by left-wing activists.