Lawmakers from both sides of the aisle on May 19 expressed alarm after an unsealed court order revealed the FBI misused a controversial surveillance tool to collect intelligence on U.S. citizens, including individuals suspected of involvement in the Jan. 6 Capitol breach and George Floyd protests.
In his April 21, 2022, opinion, Contreras noted that the FBI had frequently violated its own strict standards of use for the Foreign Intelligence Surveillance Act (FISA) database, which contains a trove of electronic communications and other foreign intelligence information.
“An analyst [redacted] ran 13 queries of individuals suspected of involvement in the January 6, 2021 Capitol breach,” the judge cited as one example. “The analyst said she ran the queries to determine whether these individuals had foreign ties, and indicated she had run ‘thousands of names within FBI systems in relation to the Capitol breach investigation’ and did not remember why she ran these 13 queries on raw FISA information.”
In that case, the Justice Department’s National Security Division concluded that the queries were made without reasonable belief that they would return foreign intelligence information or evidence of a crime—a key element required for proper use of the FISA database.
Congress RespondsAccording to Contreras, the FBI has already acted to correct the problem, attributing the database’s flagrant misuse to a “lack of common understanding” within the FBI and the National Security Division of “what it means for a query to be reasonably likely to return foreign-intelligence information or evidence of a crime.”
However, the revelation that the tool was baselessly turned against U.S. citizens is not likely to help the bureau in its quest to secure congressional reauthorization of FISA Section 702, which allows for the warrantless surveillance of non-U.S. citizens located abroad to collect intelligence about national security threats.
Unless it is renewed, the program will expire at the end of this year.
“Section 702 exists only to protect the country from external threats to our national security,” Rep. Jerrold Nadler (D-N.Y.) said. “The government may only use it to target non-U.S. persons located outside of the United States. If the FBI insists on using it for routine domestic criminal investigations, without a warrant or probable cause, then perhaps they should not have access to this information at all.”
While condemning the FBI’s actions, Nadler stressed that the redacted court opinion did not reveal evidence of political targeting by the FBI, which his Republican colleagues have said is rampant.
“The problem is not that the FBI unlawfully targeted thousands of Americans of any particular political view,” the Democrat said. “They appear to have conducted backdoor searches on Black Lives Matter protestors, January 6th rioters, and everyone in between. The problem is that they unlawfully targeted thousands of Americans. Period.
“The FBI says that they have instituted new procedures to make this kind of abuse impossible,” he added. “They have made that promise before. Without significant changes to the law to prevent this abuse, I will oppose the reauthorization of this authority.”
Meanwhile, Rep. Jim Jordan (R-Ohio), chairman of both the House Judiciary Committee and its panel on the Weaponization of the Federal Government, appeared unshocked by the news of the FBI’s violations.
Nonetheless, the anger was bipartisan on Capitol Hill as the news spread.
ReformIn March, the House Intelligence Committee announced a new bipartisan working group to spearhead congressional efforts to reauthorize Section 702 “while considering meaningful reforms.”
“I believe that the reauthorization of Section 702 is necessary to ensure the Intelligence Community maintains its ability to collect invaluable foreign intelligence to stay a step ahead of our adversaries, but corrections must be made to protect American citizens’ constitutional rights.”
“Egregious FISA abuses by the FBI underscore the need for Congress to reform 702 to better protect the civil liberties of Americans. Our @HouseIntel 702 Working Group will continue to work towards reform that ensures these types of abuses never happen again.”
The FBI did not respond to a request for comment.