Stephen Miller and Pete Hegseth Are Wildly Misleading About Section 702 Warrantless Surveillance

Miller says it is "madness" to expect law enforcement to get a warrant before spying on Americans' electronic communications.

It has been said that patriotism is the last refuge of the scoundrel—but we might need harsher terms to describe how some prominent figures in the Trump administration are appealing to Congress to extend a warrantless surveillance program that is routinely used to spy on Americans.

Lawmakers who refuse to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) are advancing "marxism" and reversing "patriotic reform," argued Stephen Miller, the White House deputy chief of staff, in a post on Twitter.

"A libertarian demand to make SecWar get approval from liberal DC judges (the ones who targeted Trump) is madness," Miller wrote in a separate post.

What has Miller in such a tizzy? On Friday, a bipartisan group of senators (including seven Republicans) blocked the renewal of Section 702 in response to President Donald Trump's nomination of Bill Pulte to be the new director of national intelligence. Without congressional approval on an extension, those spying powers will expire on June 12.

With reauthorization uncertain, Trump—who used to oppose the reauthorization of federal warrantless spying powers—and the rest of the White House are pulling out all the stops. "America faces real threats from foreign adversaries, terrorists, cyber actors, and hostile intelligence services," wrote Defense Secretary Pete Hegseth in his own Twitter post about the reauthorization fight. "Section 702 remains one of our nation's most effective tools for identifying and disrupting those threats before they reach our shores."

Both Miller and Hegseth are misleading about what Section 702 does and what critics of the program would like to see.

Though it has always been justified as a national security program aimed at spying on foreigners, Section 702 allows for the warrantless collection of Americans' emails, text messages, phone calls, and other electronic communications. There are few practical limits on how the FBI, CIA, and other intelligence agencies can use the Section 701 database. The program has been used to spy on the communications of protestors, members of Congress, journalists, and more.

And despite how the latest renewal effort in Congress has been branded, civil libertarian groups say the bill actually expands the government's spying powers rather than constraining them.

"The bill is packed with provisions to create the impression of reform, but it is carefully designed to preserve the status quo regarding warrantless access to Americans' communications," warns the Brennan Center for Justice. "Even more alarming, it would make it easier for the government to use Section 702-acquired information against Americans in court. The proposal creates no limits on backdoor searches, let alone a warrant requirement."

The three-year extension of Section 702 that passed the House in April did not include a requirement that intelligence and law enforcement agencies get a warrant before accessing the Section 702 database. That should be the bare minimum for surveillance reform. Instead, Congress and the Trump administration seem to be moving in the other direction.

In a letter to Congress sent earlier this month, the Electronic Privacy Information Center (EPIC) wrote that its coalition members were "deeply concerned by recent efforts to reauthorize Section 702 without meaningful improvements to protect Americans from warrantless surveillance, or even allow votes on such reforms."

Contra Miller, this is not "madness," and the "libertarian demand" here is, simply, that the government abide by the Fourth Amendment and respect the privacy rights of all Americans. Opposition to warrantless surveillance is not "Marxism" or some sort of conspiracy to undermine the country.

That argument isn't even working on Twitter, where Miller's posts have been slapped with a community note. It certainly should not convince anyone in Congress, where lawmakers should demand a strict warrant requirement (at a minimum) before extending Section 702.