 Stewart Baker, former general counsel of the National Security Agency, opened his testimony before the Senate Judiciary Committee last week with a startling, if somewhat insolent, proposal. Baker’s proposal came at the beginning of that hearing on the “review and reform of the Foreign Intelligence Surveillance Act,” which centered around FISA Section 702. This is an authority enacted by Congress to enable spying on foreign targets on foreign soil without the need for a warrant or court order. Yet it has been used in recent years to enable warrantless government access to millions of Americans’ private communications. Section 702 sunsets in April 2026 after the last reauthorization in April 2024. The reauthorization debate now beginning on Capitol Hill is being used to explore not just Section 702, but many other surveillance authorities associated with it as well. “It’s time to say – let’s stop putting a sunset on 702,” Baker said. “It is only putting our most valuable security tool up for grabs every couple of years and then praying that there is enough bipartisan spirit in the Congress to do what needs to be done.” This flew in the face of remarks by Chairman Chuck Grassley (R-IA) and Ranking Member Dick Durbin (D-IL). Sen. Grassley said that while Section 702 is an “essential national security and intelligence tool,” he believes that “constant Congressional oversight and vigilance is also essential to ensure that this authority is exercised responsibly.” The chairman also expressed concern about FISA’s “reach” and said there is “still more work to be done.” To underscore this point, Sen. Grassley reminded the committee that he and Sen. Durbin have complained that an oversight measure passed into law in 2024 is being blocked by the Department of Justice. That law allows senators and staff members with high levels of security clearance to attend hearings of the Foreign Intelligence Surveillance courts. But an onerous set of restrictions imposed by the Justice Department under the Biden administration and continued by the Trump administration has made it impossible for Members of Congress to attend the hearings with staff – or even to discuss them with anyone, whether cleared staff or other senators. That is not a guardrail. It is a gag order. The Justice Department also asserts a right to remove senators and Members of Congress at will. This is peculiar, given that the right to remove people from a courtroom is normally exercised by the presiding judge, not a functionary from the executive branch. Ranking Member Sen. Durbin echoed the chairman on their “responsibility to conduct oversight” of Section 702. “For years the government has used it as a domestic spying tool to collect millions, maybe billions, of Americans’ private communications.” Sen. Durbin added that the government has been: “Reading our text messages and emails, and listening to our phone calls, all without a warrant requirement of the Fourth Amendment … Section 702 has been abused to spy on business and religious leaders, political parties, Members of Congress, campaign donors, journalists, and political protesters of all stripes.” The intelligence community has long played clever word games with Section 702 to enable such warrantless domestic spying. And when federal agencies are called out on their domestic spying, more often than not they fail to respond to their putative overseers on the Hill or to innumerable Freedom of Information Act (FOIA) requests filed by PPSA and other civil liberties organizations. Consider the letter of protest Sen. Grassley and Sen. Durbin sent in November to Attorney General Pam Bondi asking her to stop those executive branch restrictions on congressional oversight at the FISA court hearings. Three months have passed and Attorney General Bondi has yet to respond to the Chairman and Ranking Member of the Senate Judiciary Committee. Could we have a better example of why senators believe Congress must use sunsetting and other robust measures to try to compel oversight of an intelligence community that refuses to answer even basic questions? Comments are closed.
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