You know you’ve in the hot seat when you get Rep. Pramilia Jayapal, Chair of the House Progressive Caucus; Rep. Andy Biggs, Former Chair of the House Freedom Caucus; and Rep. Warren Davidson, member of the Freedom Caucus and the House Republican Study Committee, on your case.
“This is totally unacceptable AND a great example of why any FISA reauthorization must include meaningful reforms to protect Fourth Amendment rights,” Rep. Jayapal tweeted in response to a Demand Progress report on FBI agents “breaking their own rules” and “unlawfully fishing through untold millions of communications that were swept up under Section 702.”
“The government abused its foreign intelligence gathering tools to spy on an unnamed Congressman and a local political organization,” tweeted Rep. Davidson. “These abuses are exactly why Congress must reform FISA this year. Warrantless surveillance of Americans is illegal.”
For years now, PPSA has been filing Freedom of Information requests and motions in federal courts to compel the intelligence community to release documents about government surveillance and unmasking of Members of Congress. We’ve yielded some data, but at times our efforts have felt like the long siege of an impregnable castle.
That stone wall has just been hit by a large boulder catapulted by Rep. Andy Biggs (R-AZ), Chairman of the Judiciary Subcommittee on Crime and Federal Government Surveillance. Rep. Biggs’ letter centers around Section 702 of the Foreign Intelligence Surveillance Act that grants authority to federal agencies to surveil the communications of foreigners located abroad.
Rep. Biggs fired off a letter to FBI Director Christopher Wray that begins by quoting a December report from the Office of the Director of National Intelligence (ODNI) that notes federal agents have used data collected under Section 702 authority to query:
We would add that the ODNI also reported that similar queries included journalists and political commentators. Again, these domestic surveillance queries were conducted out of Section 702 data that Congress explicitly defined as being about foreign intelligence.
Rep. Biggs notes that when Section 702 was last up for reauthorization, Members of Congress had the temerity to consider adding an amendment requiring a warrant for access to 702 data relating to Americans. Strictly speaking, this provision would be redundant, since that requirement is already bright line set out by the Founders in the Fourth Amendment to the Constitution. But mules often need to be struck more than once.
Even this modest step, however, was opposed then by the federal intelligence agencies. Biggs wrote they “used scare tactics to convince legislators that unchecked use of this information is only way to keep our nation from harm.”
Now Rep. Biggs is putting questions to Director Wray, demanding to know if the Member of Congress in the ODNI report was informed of how his name was used in an investigation. Was anyone disciplined for using warrantless surveillance against a Member of Congress? Rep. Biggs asks about how many times queries were performed on other Members of Congress or their staff, political party officials, or campaign personnel and candidates. And then he poses the same questions about the queries concerning a local political party.
Members of Congress and politicians are entitled to the same Fourth Amendment protection as any other American. More to the point, when the rights of a politician are violated – even if it is a candidate you dislike – such a violation affects the political rights of every American.
PPSA has been posing these questions in the form of FOIA requests and lawsuits for years. It is good to know that we now have backup from a leading member of the House Judiciary Committee.
Director Wray, the next move is yours.