Sen. Ossoff Pins Down FBI: Why Not Warrants?
When the Senate Judiciary Committee announced it was holding a hearing this morning on Section 702 of the Foreign Intelligence Surveillance Act with five men representing the Office of the Director of National Intelligence, the NSA, CIA, FBI, and the Department of Justice, many assumed it would amount to a bit of surveillance state agitprop.
Instead, senators from across the aisle grilled these intelligence community deputy directors and general counsel like so many hot dogs. The intelligence community representatives came lined up with talking points about a new “culture of compliance” in the intelligence community, only to be upended. Compliance with what? The law? The Constitution? No, the answer consistently was compliance with updated, byzantine internal regulations that this time – they swear! – will finally protect the constitutional rights of the American people.
Sen. Mike Lee (R-UT) burst out like a rodeo bull to lecture the panelists that the government has shown “shocking disregard for Americans’ constitutional rights and civil liberties,” from illegal surveillance of political donors, protestors, and even a sitting Member of Congress. He expressed frustration from years of hearing from FBI directors and attorneys general under three presidents say, “just trust us, don’t worry, we’ve got good people … and lots and lots of procedural safeguards in place.” Sen. Lee ridiculed the FBI’s boast that it has vastly reduced the hundreds of thousands of spying incidents without a probable cause warrant. (Go to 1:37:51 mark)
Sen. Lee said:
“The number should not just be going down. That number should be zero. Every ‘non-complaint’ search violates an American’s constitutional rights.”
Sen. Jon Ossoff (D-GA), who sits on both the Judiciary and Intelligence committees, was cool and unflappable as he brushed aside Assistant Attorney General Matt Olsen’s attempts to bat away his questions (go to 1:58:35). Sen. Ossoff drilled down on the need for a probable cause warrant in using “U.S. person communications” – when the FBI is looking at domestic crimes in the Section 702 database.
“Section 702 is a foreign intelligence tool, it is not a law enforcement tool,” Olsen said.
“So why is it used for domestic law enforcement purposes?” Sen. Ossoff asked.
Olsen replied that such “crime only” searches are “exceedingly” rare.
“If it is as rare as you state,” Sen. Ossoff said, “why not go get a warrant?”
Olsen then told a story of an agent looking into Section 702 information on national security grounds only to find evidence of domestic child abuse. Sen. Ossoff recognized this as an attempt at obfuscation.
“We’re talking about seeking evidence of a crime only, we’re not talking about encountering evidence of other crimes in the course of querying foreign intelligence information,” Sen. Ossoff said. “We’re talking about U.S. person queries whose sole purpose is investigating domestic crime. Why should that not require a warrant?”
Olsen’s reply was a legal tautology. Section 702 data, he said, is “lawfully collected information that is in the FBI’s holdings.”
“I don’t think you’ve made the case,” Sen. Ossoff said, again noting the FBI uses Section 702 for many purely domestic crimes.
In his calm but persistent questioning, Sen. Ossoff revealed the deeper issue of how the FBI gets around the law by using a foreign surveillance authority to set up backdoor searches to target Americans in domestic cases.
Sen. Dick Durbin (R-Il), committee chairman, had set the tone by asking why improper searches of Americans’ communications were conducted some 278,000 times in a recent one-year period. Chairman Durbin noted that 19,000 searches of a federal candidate’s donors were queried when, in fact, only 8 targeted donors showed a connection to foreign intelligence.
Sen. Lindsey Graham asked how we can be sure FBI agents using Section 702 are “not being lazy, not getting around the law?” Olsen replied that one person in the Department of Justice was fired for misusing Section 702 and that the FBI now has a “three-strikes” policy regarding 702 violation. That seemed to win little gratitude from senators.
Overall, the tone of this hearing was frank, harsh, and unrelenting.
These five men may have started their day believing that their assurances, and 11th hour proposals to further reform the government’s internal processes, would ensure smooth sailing. Afterwards, these intelligence community representatives should return to the leaders of their respective agencies and tell them: “We’ve either got to accept serious reform of Section 702 or wave it goodbye.”