A small revolt in corners of the Republican Party bedevils plans for reauthorization this year of surveillance capabilities considered the “crown jewels” of the U.S. intelligence community.
Those capabilities, subject of a Senate intelligence committee hearing Wednesday, has some Republicans worried that they could get caught up in the same secret government intercepts of communications that helped to land President Donald Trump’s short-lived national security adviser in legal jeopardy.
Indeed, some conservatives on Capitol Hill think intelligence sources could leak information on them too, as they did on former national security adviser Michael Flynn, and routinely flout laws sharply limiting surveillance on Americans.
"The spying by our government on Americans cannot be tolerated, and it is being tolerated," Rep. Ted Poe, a conservative Texas Republican, said in a telephone interview.
Poe blamed the National Security Agency for overreaching its authority, and said he would not be surprised if the agency's employees were surveilling people like himself, a former criminal court judge.
"Nothing would surprise me about what the NSA does. Unfortunately, they cannot be trusted," said Poe, who sits on the House Judiciary Committee that will weigh reauthorization.
Elsewhere on Capitol Hill, others also fretted about temptations for intelligence community employees to turn the surveillance apparatus on Americans.
“To folks in that world, it’s crack,” said an aide to another Republican congressman, who spoke without authorization of the aide’s boss and asked for anonymity. “You’ve got to get the genie back in the box, and that’s really hard.”
Flynn lasted only 24 days in Trump’s White House, and is being investigated for failure to initially acknowledge foreign payments from Russian and Turkish entities, amounting to more than half a million dollars.
The revelations that sparked Flynn’s resignation in February revolved around his telephone contacts with Russia’s ambassador to the United States, which were electronically captured by the U.S. intelligence community and leaked to The Washington Post.
Arthur Rizer, a national security director at the R Street Institute, a libertarian-leaning conservative think tank, said the mood on Capitol Hill “has shifted dramatically,” especially among emboldened members of the rebellious Freedom Caucus—a congressional bloc of conservative and libertarian Republicans allied with the Tea Party movement who stormed back to relevance in the debate on a proposed overhaul of Obamacare.
“It’s like a perfect storm,” he said “There are enough Republicans who are Trumpites, and they see the intelligence community as the enemy.”
“They are trying to strategize how best to attack this issue,” Rizer said, noting that he had met with several Freedom Caucus members and said that one spoke of his deep dissatisfaction with existing surveillance powers granted to intelligence agencies under the Foreign Intelligence Surveillance Act.
“He said, ‘I will vote for sunset over re-authorization.’ I had never heard a Republican say that,” Rizer said, declining to identify the lawmaker.
Some lawmakers think re-authorization is in trouble without significant reforms.
“They don’t have the votes to pass it. It is that bad,” the Republican aide said.
The FISA provision that permits broad collection of communications of non-Americans or permanent residents located outside of the United States is called Section 702. Without congressional re-authorization, it will expire at the end of the year.
What concerns some legislators is the “incidental” collection of communications by U.S. citizens or permanent residents as the intelligence agencies target foreigners. For years, the nation’s spy chiefs have minimized that collection but refused to offer lawmakers hard data on how many are affected by the sweeps.
The White House has pushed for “clean” re-authorization of Section 702, leaving the authorization intact, but prospects for that are dimming, said Amie Stepanovich, U.S. policy manager at Access Now, a global public policy and advocacy group for an open and free internet.
“The pressure and the momentum is toward reform,” she said.
That bipartisan pressure traditionally has come from Democrats concerned about civil liberties and a smaller number of libertarian Republicans cautious about government overreach. The size of the latter group has grown.
“Now, with the leaks about Michael Flynn and the controversy over alleged political ‘unmasking,’ that skepticism has become more pointed and more widespread,” said Adam Klein, a senior fellow at the Center for a New American Security, a Washington think tank on national security issues.
Normally, when intelligence agencies gather and analyze intercepted communications, the identities of U.S. citizens are “masked,” or listed as “U.S. person #1” and so on.
In several tweets, Trump has hammered on his allegation that officials under former President Barack Obama sought to “unmask” U.S. citizens picked up on electronic intercepts, particularly several active in his own campaign, with political intentions.
Multiple investigations on Capitol Hill and by the FBI are looking at various aspects of the surveillance done on the Trump campaign and of advisers’ links to Russia, and the “unmasking” that Obama administration officials allegedly sought for some of that spying.
“We don’t know from the outside whether this was all kosher or whether there’s really something to be concerned about,” Klein said.
Also unknown is the size of repositories of communications of Americans and foreigners that have been swept up but never examined, existing in a gray area.
“There is a lot of information that is retained but is not being searched,” Stepanovich said.
Existing statutes require that intelligence agencies purge all collected communications after five years. A declassified secret court opinion in 2011 found that 250 million communications were collected annually, but that tally has never been updated publicly.
“It’s reasonable to assume that that number is much larger today since the targets of Section 702 are more numerous,” said Neema Singh Guliani, legislative counsel for the American Civil Liberties Union, adding that she thinks the annual number has topped one billion.
Legislators pushing for reforms have tossed out a number of ways to make surveillance more transparent and subject to more oversight.
One proposed reform involves the secret Foreign Intelligence Surveillance Court, which oversees requests for surveillance warrants against foreign spies inside the United States.
Under reforms established under the 2015 USA Freedom Act, when Republicans and Democrats concerned about overreach first came together, the court at its discretion can call upon any of five lawyers with security clearances to participate in hearings and act as public advocates on civil liberty and privacy issues.
“Right now, the statute says it is discretionary for the judge to appoint an advocate,” Klein said. “Why not make it mandatory?”
“It would make the judicial oversight of 702 more credible to the public but it wouldn’t interfere at all with the operation of the program. It’s sort of a costless win for public trust,” he added.