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Senators use confirmation hearings to press views on spy authority

Ryan Tarinelli, CQ-Roll Call on

Published in News & Features

WASHINGTON — Some Senate Republicans have turned attention to a powerful spy authority as Donald Trump’s picks for key national security roles go through the confirmation process, with the lawmakers seeking to emphasize their positions on the important yet controversial surveillance tool that bitterly divided both parties last Congress.

Several GOP senators this week asked attorney general pick Pam Bondi and CIA director pick John Ratcliffe about where they stand on Section 702 of the Foreign Intelligence Surveillance Act, which allows the U.S. government to collect digital communications of foreigners located outside the country.

Sen. James Lankford, R-Okla., told Ratcliffe at a confirmation hearing before the Senate Intelligence Committee Wednesday that the lives of “a group of folks” were threatened on Election Day by “an ISIS terrorist in Oklahoma City that was discovered initially” by the surveillance authority.

“There are people in my neighborhood that are alive today because of that 702 authority,” Lankford said. “Now you’ve been outspoken on this. It has been much maligned in many ways on it, but it has been vital for intelligence collection around the world. What is your position on 702 authority?”

Congress reauthorized the authority last year with some changes aimed at making sure the government could not misuse it, but lawmakers did not pass language to require the government to get a warrant before searching for the information of Americans swept up in the program.

Lawmakers are expected to revisit those issues this Congress with the authority expiring next year, a dynamic that could again pit privacy hawks against intelligence-focused lawmakers.

Sen. Thom Tillis, R-N.C., was among those who used some of their limited time during the high-profile Bondi confirmation hearing Wednesday to outline their own positions on Section 702.

“If you know anything about that committee, you know that there are people that would almost want to practically end it, and that discussion needs to be ongoing,” Tillis said in an interview. “Anytime you have an opportunity to shed light on the danger of ending the program or substantially hampering it, you take it.”

Sen. Lindsey Graham, a South Carolina Republican who also brought up Section 702 at Bondi’s hearing, said he wanted to know what she thought now. “I want to get everybody ready to understand that 702 is vital to our national security,” he said.

Meanwhile, two other Trump picks could also face questions about Section 702 when they have confirmation hearings.

Former Rep. Tulsi Gabbard, Trump’s pick for director of national intelligence, put out a statement this month that described Section 702 as a “unique capability” that “cannot be replicated and must be safeguarded to protect our nation while ensuring the civil liberties of Americans.”

“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,” Gabbard said. “Significant FISA reforms have been enacted since my time in Congress to address these issues.”

And Kash Patel, Trump’s pick for FBI director, could also face questions about his stance on Section 702 when he goes before the Senate Judiciary Committee.

In an interview on the “Shawn Ryan Show” released last year and before he was named for the position, Patel appeared critical of the way the FBI used Section 702 during Christopher Wray’s tenure as FBI director.

“So because the budget of FISA was up, this cycle. We demanded Congress fix it,” Patel stated, but he said the majority in the House “bent the knee” and reauthorized the authority.

 

“We showed you how they abused FISA once already, and then now you know about Chris Wray and all these other FISA abuses. But you trust the director of the FBI, this guy Chris Wray, who went before you and said, ‘No, (no,) don’t worry, we fixed everything, we’re good.’ And they gave him more spy powers? I can’t answer that one,” Patel said. “I couldn’t get on board with that, that legislative fix.”

South Dakota Republican Sen. Mike Rounds, who voted for Section 702’s reauthorization last year, after meeting with Patel in December posted on social media that Patel “clearly understands the importance of Section 702 of FISA, while also looking at ways to improve the protection of the rights that American citizens have always expected.”

Bondi, appearing before the Senate Judiciary Committee this week, faced questions from several Republican senators as they tried to gauge her perspective on the program. She kept her answers short.

Sen. John Cornyn, R-Texas, sought to get an assurance from Bondi that she could support Section 702 as written. Bondi did not give Cornyn that assurance. Instead, she said she had not read the entire law yet but committed to doing everything she could to “keep America safe again.”

Bondi also sidestepped a question from Cornyn regarding concerns about adding a warrant requirement to Section 702.

Last Congress, the House voted 212-212 on an amendment that would have added a warrant requirement, with progressive Democrats and staunch conservatives banding together in voting for the amendment. The tie vote meant that the House did not agree to add the warrant requirement by the thinnest of margins.

“I hope you and I can continue this conversation after this because I think there’s a lot of misinformation with regard to how Section 702 works,” Cornyn said, adding the authority is “not used to spy on American people.”

During the same hearing, Utah Republican Sen. Mike Lee, who has been a fierce critic of Section 702, noted there’s currently no warrant requirement.

“Would you agree with me that that is potentially concerning anytime an American citizens’ private conversations are intercepted, stored — whether as an incidental collection or otherwise — they ought not be searched without some kind of probable cause showing?” Lee asked.

Bondi responded with one word: “Yes.”

Also on Wednesday, Ratcliffe answered Lankford’s question by describing the Foreign Intelligence Surveillance Act, and particularly Section 702, as an “indispensable national security tool.”

“There’s no other way to get around that. I say that not as a matter of opinion, but as an informed judgment as in my role as the director of national intelligence, being the president’s principal intelligence adviser, advising the president in the Oval Office,” Ratcliffe said. Ratcliffe held that job during the first Trump administration.

Cornyn also pressed Ratcliffe at the Senate Intelligence Committee confirmation hearing, saying there is a lot of misinformation about how FISA works, and part of the problem is “there’s been a lack of trust in the people who had access to those tools in the recent past.”

“And I hope you will help restore that trust,” Cornyn said. “I also think you’re going to need to share your experience and your wisdom with the nominees for FBI and director of national (intelligence), because we’ve had these conversations as well and I think there’s some confusion about whether a warrant should be required or not.”


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