IN-DEPTH: Lawmakers Split on Surveillance Authority Reauthorization Amid DOJ, FBI Abuses

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 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.

The FBI started instituting reforms to the process in mid-2021, which led to a drop in the number of warrantless searches and lower rates of non-compliance. A recently unsealed court filing from April 2022 (pdf) revealed that the agency had made 278,000 improper queries of American citizens. The FBI said that these searches were made before the reforms.

The filing 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.

Outlooks Vary

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.”

Bureaucratic Takeover

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.”

“Our proposal is an amendment to limit FISA to only foreigners, that basically Americans would not be under the purview,” Paul replied when asked his stance on FISA reform.

“If you want to investigate someone like Carter Page or Donald Trump, you have to go to a regular court, get a regular warrant, which obeys the Constitution,” Paul said, referencing a case where Carter Page, an associate of President Donald Trump, was spied on under FISA authority.

An inspector general investigation of Page’s case found that the FBI had obtained the warrant—part of an investigation into since-debunked claims that Trump had colluded with Russia—by making a series of false statements and omissions of fact to the FISA court.

The case is one of the most high-profile uses of the FISA against an American citizen.

“The problem with FISA is it has a lower standard,” Paul said. “The standard under the Constitution is probable cause of crime. You can ask for specific time, place, things based on probable cause. The probable cause for FISA is probable cause that you'd have a relationship with a foreign government or foreign entity

“That’s a lower standard,” Paul emphasized.

He added, “The FISA court really is unconstitutional to actually use FISA court warrants on Americans.”

In sum, he said “The only way to fix FISA is to only have it apply to non-Americans.”

Asked about Paul’s proposal, Cruz signaled his support.

“That’s what it was designed to do is focus on foreign nationals, and I have serious concerns about the Biden administration abusing its surveillance authorities to target American citizens,” he said.

Hawley raised the same suggestion, saying that authority to gather evidence domestically and overseas may need to be separated, raising the need for “structural reform” of the way Section 702 is handled.

“Should we separate out their domestic and overseas intelligence gathering on that’s authorized under 702? Should we give one piece of that to a different agency?” Hawley said. “We’ve got to increase oversight. I think we probably have to narrow the scope of section 702 as it currently exists.

“I’m very concerned about the status quo.”

When FISA last came to Congress for reauthorization, it had a broader swath of GOP support.

In the House, Rep. Darin LaHood (R-Ill.) is leading a six-member working group dedicated to considering possible reforms of FISA.

But amid GOP concerns that the Department of Justice and FBI have been “weaponized” for political ends, Republicans seem less likely to surrender that same authority to the FBI as easily. Some Democrats have also remained highly critical of most surveillance powers authorized since 9/11.

The intelligence community has insisted that despite abuses, FISA is a crucial surveillance tool necessary for national security.

However, they face a hostile Congress. While most members have indicated the need for something equivalent to Section 702, it’s unclear what that will look like.