Don’t Let FISA Provision Expire; Reform It
In the aftermath of the Sept. 11 terrorist attacks, gaps were identified in the law that explained how the federal government failed to recognize threats to the U.S. homeland posed by foreign terrorists overseas.
In 2008, Section 702 of the Foreign Intelligence Surveillance Act was enacted into law to address these gaps, and it authorizes the federal government to acquire foreign intelligence information of non-U.S. citizens who are reasonably believed to be outside the U.S.
Since 2008, Section 702 has become an essential tool to collect intelligence about our foreign adversaries’ plans to harm Americans and allow the U.S. government to rapidly act on that intelligence to disrupt attempts to attack the homeland or our citizens.
As a former assistant U.S. attorney and chief terrorism prosecutor in Las Vegas, I’ve witnessed the impact of Section 702 firsthand. From protecting U.S. diplomats and military personnel from attacks overseas to thwarting foreign terrorist plots to attack our homeland, Section 702 has produced immeasurable results to safeguard American lives.
Beyond just terrorism, Section 702 has allowed the government to collect intelligence about other malign plots from our foreign adversaries.
For example, Section 702 facilitates the collection of actionable intelligence to disrupt malicious hackers from Russia and Iran who target critical U.S. infrastructure, such as hospitals and power companies.
Section 702 facilitates the collection of actionable intelligence to disrupt drug traffickers from smuggling chemicals from China to create and traffic illicit fentanyl and methamphetamine across the southern border.
But unfortunately, this tool, which has done so much to protect Americans, has also been abused by those who swore to support and defend their fellow citizens. In particular, the FBI has neglected to treat Section 702 authority with the respect it deserves.
Among other abuses, the FBI abused Section 702 authority by conducting searches, or “queries,” of its database for information about U.S. citizens without a legitimate reason. I’ve witnessed this firsthand, as I believe I was the subject of an improper query by the FBI as a sitting member of Congress, and I confronted the FBI director about it earlier this year.
While at times the FBI may have legitimate reasons, the bureau has for far too long abused its discretion and queried for information about American citizens with impunity and for illegitimate purposes outside the scope of the law. We cannot allow this to continue.
While some in Congress would say we should let Section 702 lapse at the end of the year because of these repeated abuses, I don’t believe this is a logical or productive solution to the problems that have festered at the FBI.
Over the last year, my colleagues on the House Intelligence Committee and I have committed to the difficult task of developing substantial and meaningful reforms to Section 702. We have sought the input of former Trump administration officials and other national security experts who have experience with both the benefits and abuses of Section 702.
The result of our hard work is a package of legislative reforms to FISA that would safeguard the privacy and civil rights of Americans without taking away Section 702’s effectiveness in protecting Americans against terror threats.
Our FISA reform package reduces the number of FBI agents who can authorize a FISA query on a U.S. person by more than 90%. This means fewer FISA queries involving Americans and ensures that those queries that are approved are within the bounds of the law.
The FISA reform package goes beyond Section 702 to create enhanced criminal penalties for those who violate FISA, leak FISA applications or lie to the Foreign Intelligence Surveillance Court, give the court the authority to hold individuals in contempt, and prohibit using news reports or political opposition research as a basis of a FISA surveillance order.
These necessary reforms will help prevent a future abuse of the FISA authority like we saw when it was weaponized against Donald Trump’s 2016 presidential campaign and Trump aide Carter Page.
Finally, the FISA reform package opens the FISA court to more thorough and transparent oversight by assigning court-appointed counsel to scrutinize surveillance applications with American subjects, preventing prosecutors from shopping for FISA court judges, and requiring that hearings be transcribed and the transcripts made available to Congress.
These are just a few of dozens of meaningful reforms to FISA I have authored with my colleagues.
Americans deserve protection from both governmental overreach and security and terrorism threats. Section 702 must be reauthorized to protect us, but it must also be reformed to protect us from political overreach and privacy violations. This FISA reform package will do just that.
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