Tulsi Gabbard’s Support for Section 702 Doesn’t End the Need for Further Reform

​We are now entering the confirmation process of the Trump cabinet, which promises a mix of medieval trial by ordeal with the modern reality show. In the current episode, former Democratic Congresswoman Tulsi Gabbard is doing the rounds on Capitol Hill as she prepares for her confirmation hearings as President-elect Trump’s choice for Director of National Intelligence. Her situation is delicate. Gabbard cannot count on a vote from a single Senate Democrat. With a 53-seat Republican majority in the Senate, she cannot afford to lose Republicans, which includes a number of surveillance hawks.
 
For some of these Republicans, her stances in Congress have been problematic. When Gabbard served in Congress, she harshly criticized Section 702 of the Foreign Intelligence Surveillance Act (FISA) – the authority that allows federal agencies to surveil foreign threats located on foreign soil but is often used by our government to warrantlessly inspect Americans’ communications caught up in the National Security Agency’s global trawl. In 2017, Gabbard declared on the House floor:
 
“For years now the NSA has been collecting phone and online communications from everyday Americans from all across the country, defying the rights and liberties granted to us under the Fourth Amendment to the Constitution. The 2008 FISA Amendments, specifically Section 702, have led to massive government-led exploitation of personal privacy through the collection of Americans’ citizens’ emails. We need serious reforms that balance the protection of our civil liberties and rights through our Constitution and also keep the American people safe.”
 
In 2022, the Hawaii Democrat joined with Rep. Thomas Massie (R-KY) in co-sponsoring legislation to repeal the expansive surveillance authorities of the Bush-era Patriot Act. Gabbard justified this by saying that the intelligence community “has not been transparent or honest with the American people or even Congress about what they’ve been doing.” Gabbard was correct, the intelligence community has long played a whack-a-mole game with Congressional overseers, relying on rhetorical gamesmanship and shifting authorities to obfuscate their continued, warrantless surveillance of Americans.
 
As Gabbard now faces confirmation, Sen. James Lankford (R-OK) drew a line, saying on a Wall Street Journal podcast that Gabbard would need to reverse her opposition to Section 702 to win his vote. Gabbard responded:
 
“My prior concerns about FISA were based on insufficient protections for civil liberties, particularly regarding the FBI’s misuse of warrantless search powers on American citizens. Significant FISA reforms have been enacted since my time to address these issues.”
 
In this light, Gabbard’s 2020 legislation appears as a messaging bill meant as a shot across the bow of a deceitful intelligence community. At the same time we hope that Tulsi Gabbard doesn’t see the reforms added to Section 702 in the House last year, important as they are, as sufficient. Tightening the reporting requirements of the FBI on the number of times it searches or “queries” Americans’ communications in Section 702 databases is good, but it is no substitute for requiring probable cause warrants. Nor do declarations of support for the Fourth Amendment from the current director of national intelligence, Avril Haines, mean that the FBI will actually refrain from treating the Constitution as a dishrag.
 
Remember: The FBI has been caught using Section 702 foreign intelligence powers to prosecute people for “health care fraud,” “public corruption and bribery,” and other purely domestic cases. It surveilled 19,000 donors to a congressional campaign. It has surveilled a sitting Member of the House and a Senator, as well as a state judge and political groups. The FBI’s behavior is so out of line that it in 2019 it became the subject of a rare public rebuke by the secret FISA Court, which issued several opinions finding “widespread violations” by the FBI in its warrantless access of Americans’ data.
 
PPSA hopes that Tulsi Gabbard as Director of National Intelligence will bring a renewed and forthright focus on the need for an exacting adherence to the Fourth Amendment whenever the rights of Americans are implicated – as she so eloquently promised in this 2020 video.

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