DOJ: Most Surveillance Abuse ‘Unintentional’
The vast majority of surveillance abuse that intelligence agencies have committed against U.S. citizens under Foreign Intelligence Surveillance Act authority was unintentional, DOJ and FBI officials told the Senate Judiciary Committee during an oversight hearing Tuesday (see 2306120068, 2303280065 and 2303150069).
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Several Democratic and Republican members said they’re not ready to reauthorize FISA Section 702 and the warrantless backdoor searches it allows. Section 702, last reauthorized in 2017, is to expire in December. Chairman Dick Durbin, D-Ill., noted the FBI did improper searches for data from Americans 278,000 times between 2017 and 2022, using authority meant to combat foreign adversaries. For example, 133 people were arrested during the 2020 Black Lives Matter protests, and DOJ later concluded there was no factual basis to believe the searches would turn up foreign intelligence, he said. Durbin also noted intelligence agencies used the authority to track Jan. 6 rioters.
The “vast majority” of the 278,000 surveillance “mistakes” were inadvertent, said Assistant Attorney General Matt Olsen. Though it’s a huge number, one agent’s mistakes account for 100,000 of those queries, he said.
Sen. Josh Hawley, R-Mo., asked how it would “appropriate” for Congress to write the FBI a “blank check” to surveil Americans, given the track record of abuse. The agency has “made significant reforms,” and most mistakes were unintentional, said FBI Deputy Director Paul Abbate. The 280,000 queries about U.S. citizens were “unintentional,” said Hawley: “That’s your final answer?”
“That’s how they were assessed by the team that did the review,” said Abbate. “I’m not satisfied with that.”
“Yeah. I don’t believe that at all,” said Hawley.
Durbin said he will support Section 702 reauthorization only if there are “significant reforms,” which includes addressing warrantless surveillance of U.S. citizens in violation of the Fourth Amendment. Ranking member Lindsey Graham, R-S.C., said he agrees with Durbin on the need for better safeguards, but he highlighted the risks posed by ISIS and al-Qaeda. “If we lose this tool, we will pay a heavy price,” said Graham.
The surveillance abuses predate an important change the FBI implemented in 2021 and 2022, said Olsen. An opt-in mechanism now requires officials to explain why searches of U.S. citizens are reasonably likely to return foreign intelligence information. That change resulted in a 93% decrease in the number of U.S.-person queries in 2021 and 2022, said Olsen.
Sen. Chuck Grassley, R-Iowa, asked if there has been any punishment for the abuse. Olsen said there’s a range of penalties for a “spectrum” of violations. One official was fired for intentional abuse of FISA authority, he said. The range of repercussions includes write-ups, retraining and loss of access to FISA data, he said.
It’s hard not to conclude the FBI is interested only in not getting caught, said Sen. Mike Lee, R-Utah. The agency has done hundreds of thousands of searches of Americans without warrant when that number should be zero, Lee said. Officials haven’t effectively made the case there shouldn’t be a warrant requirement for U.S. citizen targets, said Sen. Jon Ossoff, D-Ga.: This is “ripe” for statutory “changes.”