Confronted by FBI abuses, Congress ready to add civil liberty protections to key surveillance law

New guardrails likely to protect Americans under FISA Section 702, House Intelligence Committee members say.

Published: March 26, 2023 11:10pm

Updated: March 29, 2023 10:44am

After years of evidence that the FBI has abused its spy authorities, Congress is embarking on a bipartisan effort to revamp a key surveillance law to better protect civil liberties, including appointing special lawyers to advocate on behalf of Americans secretly targeted by the government.

The Foreign Intelligence Surveillance Act Section 702 powers allow the government to rummage through phone records in terrorism and counterintelligence probes without a warrant and have long raised deep concerns, starting with ACLU litigation years ago and continuing through the bungled FISA warrant that unlawfully targeted the Trump campaign and adviser Carter Page during the Russia collusion probe.

But lawmakers continued to renew the law to ensure the government had the powers it needed to fight terror threats. But since its last renewal, the FISA Court and the U.S. intelligence community released devastating reports in 2020 and 2022 chronicling years of FISA abuses that went far beyond the Russia probe and even included targeting of a sitting member of Congress.

Those revelations have increased the resolve of lawmakers to make substantive changes this year when the law expires, including inside the House Intelligence Committee, where a bipartisan group was selected last week to craft suggested changes.

"I think that you will see changes made to it," Rep. Austin Scott (R-Ga.), one of the newest members of the House Intelligence Committee, told Just the News, adding there was clear evidence that the law's past safeguards have been breached by the FBI and intel agencies.

"Unfortunately, there have been some people that have leaped those guardrails, for lack of better terminology, and there have got to be consequences for those people who were entrusted," Scott said in an interview with the "Just the News, No Noise" television show. "If you were entrusted with the ability to query that information, and you abused that, then there have to be consequences."

Scott said lawmakers on the committee want to address who in government can query the database, who can be targeted and who must sign off on such warrantless surveillance. He also suggested there is some support for adding lawyers to the secretive process to help defend the rights of Americans who are being surveilled without their knowledge.

"Absolutely," Scott said when asked whether adding legal advocates was on the table for the FISA process. "I think you will see a broad bipartisan agreement on this. I'm not saying everybody's going to agree on it, you know, but I think you'll see broad bipartisan agreement on what we come up with."

Scott said one of the dynamics that could help inform the reform process is Americans affected by abuses "personally talking about what has been done to them in the past."

That process started earlier this month, when Rep. Darrin LaHood (R-Ill.), a member of the intelligence panel, disclosed he was the lawmaker targeted for surveillance who was referenced in a declassified intelligence community report on FISA abuses released in December.

"I have had the opportunity to review the classified summary of this violation, and it is my opinion that the member of Congress who was wrongfully queried multiple times solely by his name was, in fact, me," LaHood said during a hearing in early March.

Since then, Intelligence Committee Chairman Mike Turner (R-Ohio) and Vice Chairman Jim Himes (D-Conn.) created a panel of lawmakers to craft meaningful reform and bring it to the House. It's one of several areas of unexpected bipartisan consensus on national security matters that has broken out since Kevin McCarthy took over as Speaker in January.

The House has an obligation "to ensure that these authorities do not violate Americans' constitutionally protected rights and to look at further reforms to protect those rights," Himes said in announcing the initiative this week.

The evidence of FBI abuses of Section 702 and FISA in general have mounted over the last years, starting in 2019 when the Justice Department inspector general released a devastating report concluding the FBI warrant targeting Page was riddled with errors, violated policies and involved misconduct that included withholding required information from the court and even doctoring a piece of evidence.

That was followed a year later by the release of a declassified opinion by the Foreign Intelligence Surveillance Court that chronicled how the FBI had been "seriously and systematically abusing its warrantless electronic surveillance authority" for years outside the Russia collusion case.

And then in December, the Office of the Director of National Intelligence released a declassified version of a 2021 report that found additional abuses, including the targeting of Americans with clear constitutional protections such as the member of Congress and a political organization.

The FBI said it has been working on its own internal Section 702 reforms and wants to constructively engage with Congress to add better protections and ensure all Americans have confidence in the bureau's work.

But the newly released audit report said the FBI continues to abuse the Section 702 system despite its internal reforms and training. "Notwithstanding a focused and concerted effort by Federal Bureau of Investigation (FBI) personnel to comply with the requirements of Section 702, misunderstandings regarding FBI's systems and FBI's querying procedures caused a large number of query errors," ODNI warned in December.

Scott told Just the News that it is essential the reforms not only add civil liberty protections but that they "make sure there are consequences for people that violate" the law.

Section 702 has been around for a long time, but it took on an expanded role after the war on terror began after the Sept. 11, 2001 attacks on America. It allows for warrantless surveillance of non-U.S. persons reasonably believed to be located outside the United States, including the government collection from American phone and Big Tech companies of the phone data and private messages of targeted foreigners abroad — even when they are communicating with Americans.

That includes letting the FBI search for information about Americans in the intercepted messages of targeted foreigners.

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