A congressional subcommittee’s hearing considering the future of the Foreign Intelligence Surveillance Act (FISA) left one legal expert asserting that “without significant changes…we become a nation of chumps.”
Friday, the House Judiciary Subcommittee on Crime and Federal Government Surveillance held its second hearing on Fixing FISA. Led by chair Arizona Rep. Andy Biggs (R), a key component of testimony involved continued abuses of powers by the FBI, namely through warrantless surveillance of American citizens.
Speaking to that at the hearing, George Washington University law professor Jonathan Turley addressed the need to, at the very least, handle existing concerns in Section 702 that have allowed for documented privacy violations.
“If we reauthorize Section 702 without significant changes, then we become a nation of chumps,” the professor and Fox News contributor said Friday. “We have documented evidence of massive violations of the privacy of U.S. citizens.”
As it exists, Section 702, a provision of the FISA Amendments Act of 2008, allows for the surveillance of non-U.S. citizens overseas. Though the intelligence community claims that U.S. citizens, regardless of their whereabouts, are off limits from such targeted surveillance, the reality has been that any American who communicates with any foreigner flagged for surveillance will have their communications brought into the investigation as well to be entered into a database, seemingly bypassing Fourth Amendment protections.
“Americans’ communications are swept up in enormous volumes — so enormous that the government won’t tell us how big it is,” testified Elizabeth Goitein, the senior director of the Liberty and National Security Program and New York University School of Law’s Brennan Center for Justice. “And those communications are available to FBI agents without a warrant or a court order of any kind.”
As previously covered, a report from the Office of the Director of National Intelligence confirmed that between Dec. 1, 2020, and Nov. 30, 2021, the FBI had used FISA powers to perform warrantless searches on the communications of roughly 3.4 million Americans.
IG Horowitz drops a bomb on scope of warrantless ‘spying’ on innocent Americans; calls to repeal FISA begin https://t.co/1k1uqxrRlU pic.twitter.com/9xdaHNOcU4
— BizPac Review (@BIZPACReview) April 29, 2023
“There’s no question that the FBI and other agencies have continued to defy federal law and abuse their powers under FISA,” Turley added Friday. “There’s no question that both the courts and Congress have been misled in the use of FISA in prior years. There’s no question that the scope of the harm to privacy and constitutional rights has been immense. The only question is what you’re going to do about it.”
Phil Kiko, former chief of staff and general counsel of the House Judiciary Committee and principal at Williams & Jensen, favored reforms over outright abolishment of Section 702 as he testified, “My preference would be some kind of reform effort with teeth and accountability, because there hasn’t been any teeth and accountability in the oversight that’s been conducted. There’s no accountability among the people that are breaking the law. There’s no accountability among the administration…There’s nothing.”
Meanwhile, Rep. Matt Gaetz (R-FL), who is expected to introduce a resolution to end FISA Tuesday co-sponsored by Republican Reps. Eli Crane (AZ), Marjorie Taylor Greene (GA), Paul Gosar (AZ), Thomas Massie (KY) and Matt Rosendale (MT), suggested there was no fix that could repair Section 702.
“The standard of violation of breach is so pervasive that the patient is not savable,” Gaetz asserted. “We have to design something totally different outside 702.”
While there was agreement on the disfavor for the surveillance powers granted, Project for Privacy and Surveillance Accountability general counsel Gene Schaerr argued that simply doing away with the statute would create new concerns for the American people that have witnessed what many consider to be a two-tiered justice system under President Joe Biden.
“You then have a statutory vacuum, which the executive branch loves,” Schaerr said of getting rid of Section 702. “If there’s no statute that governs the issue, you’re basically opening the door to the White House and the Justice Department lawyers to come up with creative rationales.”
Should Congress not act to amend or reauthorize Section 702, it will automatically expire by the end of the year. The entirety of Friday’s hearing can be viewed below:
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Native of Brooklyn, NY, Kevin Haggerty is a graduate of Hunter College where he studied Cultural Anthropology and Geography. An avid reader and truth seeker, he currently resides in Texas with his wife and their dog and, when he isn't researching current events and their impacts, you'll find him spending time with friends and family or working on his next novel.
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