Lawmakers Divided on Reauthorizing Surveillance Authority
Lawmakers are split on reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA), a broad post-9/11 surveillance authority, in the light of a string of alleged abuses of the apparatus against American citizens.
Limited authority to gather foreign intelligence information is granted by Section 702 of the Foreign Intelligence Surveillance Act (FISA), a post-9/11 surveillance tool that gives U.S. intelligence the power to target “(i) non-U.S. persons (ii) who are reasonably believed to be outside of the United States (iii) to acquire foreign intelligence information.”
However, this power can grant an expanding circle of possible searches to the FBI and other intel agencies, who can use the same power against American citizens who had any interaction with targeted foreigners.
The provision, one of many surveillance authorities instituted after the Sept. 11, 2001 terror attacks, is set to expire on Dec. 31 if Congress doesn’t reauthorize it. But many in Congress have concerns about the program after a litany of legal violations involving the apparatus have come to light.
Report after report has revealed abuses of the program, most prominently by the FBI. The most significant violations came in 2021 when it was revealed that the agency had used the foreign intelligence tool 3.3 million times against American citizens without a warrant or court approval. Some of those 3.3 million American queries were exercised against an unnamed member of Congress.
After that report, the FBI vowed to make changes—a vow the agency has reiterated after an April 2023 report revealed that the agency had made 278,000 additional illegal queries of American citizens after making previous reforms that the agency said would address the problem (pdf).
The April report also revealed that the FISA power had been used nearly 20,000 times against political donors to an unnamed congressional campaign—only eight of those were found to have had any genuine foreign intelligence basis.
Several lawmakers discussed the issue with The Epoch Times and gave split perspectives on renewing the program. Most suggested that the program was an important and useful tool in combatting international terrorism but indicated that abuses were concerning and needed to be addressed.
“We need to preserve the ability to collect intelligence against foreign spies, but we also need to protect the privacy of American citizens and make sure they’re accorded the rights that are guaranteed under the Constitution,” Sen. John Cornyn (R-Texas) said.
He added, “[With] regard to the incidental collection and use of lawfully collected FISA information for criminal investigations involving U.S. persons, to that, there’s room to provide additional layers of protection as guaranteed by the Constitution.”
In order to surveil American citizens under FISA, intelligence agencies must make a case to the Foreign Intelligence Surveillance Court, the primary watchdog of FISA.
However, its proceedings are conducted entirely in secret, unlike most U.S. courts. This means that what exactly happens in a FISA court hearing is not public information, aside from a few highly-redacted releases issued from the court.
Sen. Richard Blumenthal (D-Conn.) also proposed reforms to the collection of data against Americans.
“There need to be some changes in the law, there need to be some reforms for it to pass, no question,” he said.
“For example, strengthening the adversary process, so that different points of view are represented in the application for warrants.”
During a June 13 hearing of the Senate Judiciary Committee on the issue, Sen. Dick Durbin (D-Ill.), who has expressed criticism of Section 702 in the past, referenced the April report, saying that the findings again raise questions about intelligence agencies’ ability to use the tool within the confines laid out in the statute.
“Since the last reauthorization of Section 702, many violations of the constitutional, statutory, and court-imposed restrictions on 702 have come to light,” Durbin said, referencing the narrow reauthorization of the program in 2017 under then-President Donald Trump.
“These searches have affected all manner of Americans, such as individuals listed in police homicide reports, including victims, next of kin, and witnesses,” Durbin said.
He also noted that the surveillance authority had been used on purely domestic matters, including against both Black Lives Matter and Jan. 6 protestors.
Sen. Josh Hawley (R-Mo.) likewise said he has “major concerns” about reauthorizing Section 702.
“I don’t know why we would just give them this authority again, without any kind of reform,” Hawley said.
“Just take the 278,000 illegal illicit queries of Americans’ personal data, and their excuse for that is it was unintentional. Oh, please, if it’s unintentional, I have a bridge I want to sell you. I mean, to me that’s just absurd.”
Sen. Jim Risch (R-Idaho) said he supports reauthorization of Section 702, and said that while it’s important to “root out abuse,” Section 702 or a similar program is needed for national security purposes.
Asked about his take on renewing Section 702, Rep. Bob Good (R-Va.), a prominent member of the powerful House Freedom Caucus, replied quickly that he was “absolutely against it,” tying his opposition to the string of reported abuses.
Pressed on whether any reforms would be acceptable to him, Good replied, “The constitutional rights of the American people should be paramount.”
Rep. Jack Bergman (R-Wis.) opined that the post-9/11 tool was put in place “for the right reasons,” but said that like other government programs left to bureaucratic interpretation, bureaucrats have taken over the program for ends different than what Congress originally intended.
He said the time has come for Congress to take “a close look to see what has changed since we authorized it because … most of the things we should do in Congress should have a sunset.”
“So we can reevaluate them, not let them go on forever and ever. Because bureaucracies then will grab a hold of it.”
Rep. Tim Burchett (R-Tenn.) echoed this sentiment.
“I think we need to rethink the whole FISA court situation,” Burchett said. “It’s a typical overreach by unelected bureaucrats.”
“I just don’t like the government spying on Americans,” he added.
Sen. Ted Cruz (R-Texas) said that Section 702 is “an important authority,” but like others, he expressed concerns about the string of alleged abuses.
Cruz expressed concerns about “this administration abusing those authorities to target American citizens. As we’ve seen, this administration thoroughly politicized the Department of Justice and the FBI and the intelligence agencies.”
This, Cruz said, “[gives] Americans far less confidence that it will be applied in a neutral manner.”
Prohibit Use Against Americans: Paul
Sen. Rand Paul (R-Ky.) told The Epoch Times that the solution was to reform the FISA system to not apply at all to American citizens.
“Our proposal is an amendment to limit FISA to only foreign intelligence,” Paul said.
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