Democrats must question possible political surveillance

With the House debating impeachment of President Trump based on a complaint from a whistleblower within the intelligence community, we run the risk of partisan positions about surveillance only becoming more embedded. 

When special Department of Justice (DOJ) prosecutor John Durham soon completes his investigation into the origins of the Russia investigation, a Republican senator almost surely will question reported FBI surveillance of Trump campaign officials and consultants in 2016. A Democrat will express concern about the ability of the government to stop Russians from targeting Democratic presidential candidates in 2020.

A strange role reversal has occurred. For decades, when intelligence agencies and their operations were publicly denounced, Republicans invoked national security concerns and leapt to their defense. The Democrats were the civil libertarians, dragging secret surveillance into the disinfecting light of day.

Now a Republican president and his defenders hurl accusations against intelligence agents and agencies while Democrats scurry to defend the former leadership of the FBI, CIA and National Security Agency (NSA). In this reversal, Democrats remain so focused on the battle lines of 2016 that we risk missing the real dangers of potential surveillance abuse under the current president. 

It has become a GOP talking point that the intelligence practice of “unmasking” was used by the Obama administration to persecute Republicans. Unmasking is the practice of revealing to a government official the identity of an American citizen or resident caught up incidentally in surveillance of foreigners. Some likely unmasking victims cited by Republicans are former national security adviser Michael Flynn and Trump campaign consultant Carter Page, whose connections to Moscow raised suspicions at the FBI long before the agency began monitoring his actions during the 2016 presidential campaign. Republicans charge that warrantless surveillance and unmaskings were performed for purely political surveillance.

Rather than adopt a defensive clutch when Republicans raise such suspicions, Democrats should accept that bet — and raise it. Congressional Democrats should investigate how the Trump administration itself might be misusing surveillance. The surveillance practices about which Republicans purport to be so concerned are mushrooming. According to a national intelligence report, unmaskings of American citizens and residents have almost doubled, from just above 9,000 in 2015-2016 under President Obama to almost 17,000 in 2018 under President Trump.

Are Democratic members of Congress among the unmasked? What about Democratic House or Senate staffers? Are Democratic candidates for president or some of their staff members being surveilled because their views on Iran or other issues differ from those of President Trump? 

In short, Democrats would do well to remember it was our party that exposed the Nixon administration when it allowed the CIA to go against its charter and conduct warrantless surveillance of U.S. journalists and government officials. That same administration unleashed dozens of operatives to disrupt Democratic campaigns. Democratic history is not pure — the Kennedys famously spied on Martin Luther King Jr. and President Lyndon Johnson used the CIA to spy on GOP presidential candidate Barry Goldwater. But the tradition of exposing covert abuses became a hallmark of the Democratic Party, from Watergate to the Church Committee probe of the CIA, to the investigations of Iran-Contra.

Revelations from the Nixon investigations prompted the late Sen. Ted Kennedy (D-Mass.) to introduce measures to create a legal framework for intelligence activities. That bill, the Foreign Intelligence Surveillance Act (FISA), was considered landmark legislation when President Jimmy Carter signed it into law in 1978.

FISA was a great improvement over the lawlessness that preceded it. But in a digital age, FISA has the potential for intelligence agencies and law enforcement to easily use foreign intelligence for backdoor domestic surveillance. Government surveillance now is armed with artificial intelligence capable of analyzing metadata based on our calls, emails and other digital traffic. 

How should Democrats respond in the face of rising surveillance danger?

First, Democrats should get behind Sen. Patrick Leahy (D-Vt.) who is cosponsoring reforms with Republican Mike Lee of Utah. The Lee-Leahy bill would end bulk collection of Americans’ data, strengthen protections and transparency, and curb surveillance overreach while protecting national security.  

Second, Democrats should use congressional power to investigate what the Trump administration is up to regarding surveillance.

Finally, we shouldn’t let the Trump administration distract us from our core beliefs. We should retrieve our mojo on civil liberties and stop reflexively defending the alphabet agencies simply because this time it is not our ox being gored. We must remember our party’s distinguished heritage by uniformly protecting privacy and freedom against government surveillance before, during and after Trump’s tenure.

Dale Leibach served as an assistant press secretary to President Jimmy Carter and as an aide to former Sens. Tom Harkin (D-Iowa) and Robert Torricelli (D-N.J.). He is a policy adviser to the Washington-based Project for Privacy and Surveillance Accountability.