In a social media post on Wednesday afternoon, former President Donald Trump delivered an all-caps message to members of Congress. “KILL FISA,” he wrote. “IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS.”
Trump was referring to Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows intelligence services to scoop up electronic communications between Americans and individuals overseas. Those communications are stored in a massive database—the true extent of which is unknown and perhaps unquantifiable—that is routinely queried by the FBI and other law enforcement agencies, giving them a back door to spy on Americans’ communications without a warrant.
Trump is right to be mad about how Section 702 has been used, and he’s also right that he is far from the only target. In 2021, for example, the FBI used its FISA powers to run more than 3.3 million queries through the Section 702 database. A Foreign Intelligence Surveillance Court report unsealed in May showed that the FBI improperly used its warrantless search powers more than 278,000 times during 2021—targeting “crime victims, January 6th riot suspects, people arrested at a protest in the wake of the police killing of George Floyd in 2020,” and donors to congressional candidates.
Last week, as Congress was considering the periodic renewal of Section 702, some lawmakers (including some of Trump’s closest allies in the House) were pushing for a requirement that law enforcement agencies get a warrant before trolling through the FISA database. That effort failed, 212–212, with Speaker of the House Mike Johnson (R–La.) casting the tie-breaking vote.
And how did Trump react to all that?
“I’m not a big fan of FISA,” the former president reiterated to reporters after meeting with Johnson at Mar-a-Lago on Friday night. “But I told everybody, ‘Do what you want.'”
From “KILL FISA” to “Do what you want” in a little over two days. Where’s the righteous indignation? Where’s the all-caps anger?
Trump’s flop on FISA went mostly unnoticed in media coverage over the weekend, perhaps because it was entirely predictable. For a guy who has spent years railing against the abuses of the “deep state,” Trump has shockingly little to show for it—and not just because the FBI’s budget increased in each of the four years that he oversaw the executive branch.
Perhaps Trump’s biggest failure on that front is the very Section 702 warrantless spying program that Congress is reauthorizing. The last reauthorization occurred in early 2018, and it was then-President Donald Trump who put his signature to the bill—a bill that did not include a requirement for law enforcement to get a warrant before accessing Americans’ communications. In fact, the Trump administration even outlined ways for the warrantless spying program to continue in the event that Congress did not pass a reauthorization in time.
In a very real and direct way, the abuses of Section 702 that have taken place since 2018—millions of queries run by the FBI, including the spying on January 6 rioters, etc.—occurred because Trump decided at a crucial moment to simply go along with what the deep state wanted.
It’s true that this time around, Trump is not president and does not have a role to play in reauthorizing Section 702. But his influence over the Republican Party is significant, and this was an issue in which the reformers fell a single vote short of imposing the warrant requirement. There is also a reconsideration of the vote today, which means Trump’s response on Friday (or over the weekend) could have swayed the ultimate outcome.
If nothing else, Trump could at least have gone after Johnson for his decisive vote. As Matt Taibbi noted on Friday, Johnson has failed to articulate a reason why law enforcement needs secret authority to spy on Americans’ communications beyond “a secret intelligence briefing, where he learned secret reasons, which he encouraged other members to learn secretly.”
Isn’t that the epitome of the very “deep state” that Trump supposedly stands athwart yelling “Stop”?
Others who favored reforms were less cowardly about where the blame should be assigned. “The Speaker doesn’t always vote in the House, but he was the tie breaker today,” Rep. Thomas Massie (R–Ky.) posted on X. “He voted against warrants.”
“Those 86 Republicans [who voted to block the warrant requirement] should be ashamed of themselves. I say that without any apology,” Rep. Chip Roy (R–Texas) said on Fox News. He urged the public to “let your members of Congress know before we have to come back on Monday and vote again.”
But the Republican with the party’s biggest bully pulpit defended Johnson on Friday night and didn’t post a peep about Section 702 over the weekend. Keep that in mind the next time Trump invokes the abuses of the deep state and promises that things will be different if voters put him back in the White House.
The post Donald Trump’s Cowardice Over Warrantless Spying appeared first on Reason.com.
