It’s safe to say that Seth Moulton is not a fan of Donald Trump.
Whether he’s trolling the president on Twitter or lambasting him on cable news, the congressman from the North Shore has been one of the most vocal critics of the year-old Trump administration, on grounds of both policy and character. In a radio interview over the summer, Moulton said Trump “lies all the time.” In the spring he called for the resignation of Attorney General Jeff Sessions.
Sometimes, it seemed like Seth Moulton was everywhere.
But when the House this month considered the reauthorization of a controversial warrantless surveillance program, Moulton — breaking with most of the Massachusetts congressional delegation and aligning with a coalition that includes more than a few hard-core Trump supporters — voted yes. And afterward, the congressman — who isn’t exactly camera-shy — became uncharacteristically hard to find.
The bill, which passed the Senate on Thursday, extends a National Security Agency spying program that was created secretly after 9/11 and eventually made law in 2008. Known as Section 702 of the FISA Amendments Act, the law allows federal agencies, in secret and without a warrant, to intercept phone calls and Internet communications from non-Americans outside the United States — even if those communications are with citizens here.
Sifting through the private calls and communications of Americans, even obliquely, would appear to fly in the face of the Fourth Amendment to the Constitution, and because of the secretive nature of the program, there is essentially zero transparency involved. Is the surveillance power being wielded legally and responsibly? You pretty much have to take the word of those involved on that.
Even in the best of times, Section 702 gives privacy advocates serious pause. But these are not the best of times.
In just a year in office, the president has shattered nearly every norm imaginable. His campaign leaned heavily on open calls to jail his opponent — and he’s recently made similar threats toward one of her former aides. Trump fired the director of the FBI when he wouldn’t scuttle an investigation into his campaign’s ties to Russia, and reportedly considered ditching Sessions, too.
Are we really expected to believe that a surveillance program like this won’t be subject to the whims of an administration that plainly has no qualms about leveraging its power wherever it can?
Yes, say Harvard law professor and former assistant US attorney general Jack Goldsmith and former NSA lawyer Susan Hennessey, writing in the national security blog Lawfare. Because the legal system underpinning Section 702 is run primarily by career public servants and supervised by all three branches of government, they wrote, “the NSA and FBI are remarkably immune from inappropriate presidential meddling.” And support from Trump critics, who presumably have more information about the surveillance program’s workings than the public, is actually evidence of the program’s efficacy and importance, they write.
I hope that’s true. But what has this administration done to earn that benefit of the doubt?
In November, three dozen advocacy and civil rights groups, including the American Civil Liberties Union, the Sunlight Foundation, Human Rights Watch, and the NAACP, sent a letter to Congress outlining their strong opposition to the reauthorization.
The bill, they wrote, “would expand surveillance . . . and could be read to codify current unlawful surveillance practices.” If that was scary under Barack Obama, then it ought to be downright terrifying under Trump.
So why did Moulton, who has been as critical as anyone in Congress of Trump and appears wary of the Justice Department’s willingness to abuse its power, fall in line with the Paul Ryans and Mitch McConnells of the world (and, to be fair, the Dianne Feinsteins and Jeanne Shaheens)?
The congressman whose political superpower seemed to be his omnipresence was busy this week and could not spare a few minutes to talk about his FISA vote on Wednesday or Thursday or Friday morning, according to his staff.
In a statement e-mailed Friday morning, Moulton said he’d have preferred a version of the bill that included an amendment “to expand Constitutional protections for American citizens under this critical program for our national security.”
When that amendment failed, he voted for the bill because “it still provided more of these protections” than a straight reauthorization of Section 702, he said in the statement, although the various groups aligned against the bill are less convinced of that.
But that doesn’t address one of the most pertinent concerns about the bill: the current state of the White House.
The votes in the House and Senate have made for some strange alliances. Both Massachusetts senators — and presumed Democratic presidential hopefuls such as New York Senator Kirsten Gillibrand and California Senator Kamala Harris — opposed the bill, joined by a handful of privacy-minded or Libertarian-leaning Republicans (this is known as the “God help me, I agree with Ted Cruz” coalition).
Moulton’s ambition for higher office is well documented. But if that’s where he’s aiming, and if he wants to credibly criticize the Trump administration, then we deserve to know why he’s OK with handing this president part of our privacy.