Renewing a warrantless surveillance tool without reform, despite alleged misuse by intelligence officials to spy on Americans, was not necessary to combat terrorist attacks as its backers contended, experts told the Daily Caller News Foundation.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) passed the Senate and House this week with bipartisan support as former intelligence officials raised concerns over national security risks due to its expiration. However, there are alternative methods to stop terrorism without resorting to warrantless surveillance of American citizens, national security experts told the DCNF. (RELATED: FBI Agents Misused FISA Data To Surveil ‘Political Party,’ US Congressman, Audit Finds)
Congress Votes To Extend FBI Warrantless Surveillance Tool Without Reforming It via @DailyCaller https://t.co/HLJPsGfYtP
— Jason Cohen 🇺🇸 (@JasonJournoDC) December 14, 2023
“I think it’s ridiculous [that people say its expiration would be dangerous],” retired Air Force Colonel Rob Maness told the DCNF. “The need for FISA at all, considering the weaponization of that court, is questionable, quite frankly … Especially the 702 reauthorization so the FBI can do warrantless surveillance on American citizens — that absolutely must go — and quite frankly, all of the arguments [are] typical of the establishment uniparty people in Washington, D.C. that want to use scare tactics.”
The imminent expiration of FISA at the end of December spurred lawmakers to fall victim to coercion through intimidation, the Center For Security Policy’s Senior Analyst For Strategy J. Michael Waller told the DCNF.
“What we saw in Congress is your typical Chicken Little FBI briefing at the very last minute to scare congressmen into keeping the status quo or expanding FBI powers,” Waller told the DCNF. “This happens all the time, Congress falls for it all the time. And that kind of thing has to stop.”
“There are really important elements of the FISA law that do benefit us as a country, and that don’t harm our constitutional rights and that don’t empower bad elements in the government, and those things need to be preserved,” Waller told the DCNF.
Republican Utah Sen. Mike Lee recently questioned FBI Director Christopher Wray about the alleged abuse of Section 702 of FISA and Wray said the FBI has already put reforms in place to stop them. Lee stated that the FBI always makes that claim but never changes or shows evidence of it, leaving him with no basis to trust the agency.
“You’ve never had the FBI say, ‘Yes, there have been problems in this regard, we want to work with Congress to address those problems,'” Waller told the DCNF.
Dozens of former intelligence officials, including several who signed a letter casting doubt on the authenticity of Hunter Biden’s laptop before the 2020 presidential election, pushed Congress in a Tuesday letter not to let Section 702 of FISA expire or implement reforms that would limit surveillance authorities.
“We cannot hamstring the U.S. Intelligence Community either by failing to renew Section 702 of the Foreign Intelligence Surveillance Act or by limiting it in ways that would make it difficult for the government to protect Americans,” the letter states. “To be clear, Section 702 saves American lives and helps keep Americans safe from international terrorist attacks, foreign cyberattacks, overseas fentanyl suppliers, and other threats to our national security. There’s no substitute for it.”
During the Crossfire Hurricane investigation launched in 2016, which evaluated whether the Trump campaign colluded with Russia to influence the outcome of the 2016 presidential election, the FBI applied for FISA court warrants to conduct surveillance against former Trump campaign adviser Carter Page. The FBI cited the now-discredited Steele Dossier, which alleged that Trump had connections to Russia, extensively in its FISA applications even though investigators were unable to verify any of the claims that his campaign conspired with Russia.
“Even just that one abuse that led to the surveillance of the Trump campaign is enough for me to say it’s absolutely useless,” Maness told the DCNF. “It’s antithetical to everything that the United States of America stands for … and we’ve got to get rid of it. There’s no question in my mind that it is much more harmful to the United States of America than it has ever helped.”
The FBI pointed the DCNF to Wray’s recent opening statement to the Senate Judiciary Committee. “[Section] 702 is key to our ability to detect a foreign terrorist organization overseas directing an operative here to carry out an attack in our own backyard, and U.S.-person queries, in particular, may provide the critical link that allows us to identify the intended target or build out the network of attackers so we can stop them before they strike and kill Americans,” Wray said.
The bureau declined to comment on how many terrorist attacks Section 702 of FISA has thwarted.
“As a matter of fact, when you ask the question, you can never get a straight answer about exactly which terrorist attacks have been stopped by the use of the system, especially on the 702 side,” Maness told the DCNF.
The FBI conducted nearly 5 million searches of Americans from 2019 to 2022 and “there was little justification” evident for them, according to a September report by the Privacy and Civil Liberties Oversight Board.
The Fourth Amendment prescribes requirements for search warrants.
Those requirements aren’t met under FISA 702.
Not even close.
That’s fine for spying on foreign adversaries—but not Americans.
FISA needs an overhaul.
NDAA postpones FISA’s overhaul.#StopTheNDAA
— Mike Lee (@BasedMikeLee) December 14, 2023
“The Administration likes to talk a lot about the overall value of Section 702 when it comes to foreign intelligence. But what they have not done is make the case that whatever the overall intelligence value of Section 702 might be, how restricting backdoor searches of US persons and the other reforms we’ve proposed would hurt national security,” Kia Hamadanchy, senior federal policy counsel with the ACLU, told the DCNF.
“They have been engaging in a false dichotomy as if the question is whether we end 702 or leave it as it is, when the real question is whether requiring a warrant for US person queries and other reforms would undermine the value of the program,” Hamadanchy added. “And they have not made that case.”
Section 702 of FISA is important but it could still be effective without violating Americans’ privacy, Noah Chauvin, counsel in the Liberty National Security Program at the Brennan Center and former intelligence counsel in the Office of the General Counsel of the U.S. Department of Homeland Security, told the DCNF.
“I think the administration has done a pretty decent job of demonstrating that there is intelligence value to Section 702. And they’ve provided some declassified examples of how they have used it as a part of successful counterterrorism operations,” Chauvin said. “What we haven’t seen is any evidence that any common sense reforms that folks from civil society or Congress are pushing for to protect Americans privacy, would make Section 702 any less effective as a counterterrorism tool.”
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