U.S. Rep. Darin LaHood said he thinks Congress will reauthorize a surveillance program by its expiration date at the end of the year.
The Peoria-area Republican chairs the bipartisan FISA 702 working group in charge of evaluating a part of the Foreign Intelligence Surveillance Act [FISA] and suggesting potential changes. FISA 702 allows court-approved use of electronic surveillance that can include communications by some Americans overseas.
Critics have said the FBI has overused and abused provisions of the law, lied about it, and that it was used to spark a politically motivated investigation. Yet panelists in a session LaHood moderated last week at the Council on Foreign Relations said it remains a valuable tool.
“Something like 50-60% of the President’s Daily Brief has intelligence in it that comes from 702 ... There is no good substitute for that program,” said Stewart Baker, former general counsel of the National Security Agency and former assistant secretary of Homeland Security for Policy.
LaHood said without the 702 section of FISA, vast areas of U.S. intelligence gathering would go dark.
"Our allies rely on this program extensively. And I don't think it's any coincidence we haven't had another 9/11 in the last 20 years," said LaHood.
LaHood himself was the subject of an unlawful query. Panelists suggested most of the improper database searches of foreign intelligence material are probably casual explorations just to see if there are connections to some other investigation, but they are not authorized even under current FBI rules.
This also has prompted some distrust among U.S. allies who are not sure the U.S. can be trusted to use such searches and surveillance for legitimate anti-terrorist activity.
“I think it’s really important we understand that this conversation is happening in an international tinderbox...I think we just have to be really cognizant and really careful. We have this great national security asset…We don’t want to abuse it. We don’t want to appear to abuse it as well,” said Karen Kornbluh, former United States ambassador to the Organization for Economic Co-operation and Development.
The working group LaHood chaired issued a report last week with 45 suggested reforms including:
Provisions to stop improper FBI queries
- Restricts the number of FBI personnel who can authorize a U.S. person query by more than 90%.
- Requires the FBI to obtain a warrant to conduct a query on an American for evidence of a crime.
- Creates specific criminal liability for 702 leaks of a U.S. person’s communications.
- Makes FBI compensation contingent on query compliance; mandates independent audits of all FBI queries of U.S. persons.
- Prohibits queries to suppress Americans’ political opinions or religious beliefs.
Provisions to prevent politically motivated investigations
- Creates five enhanced criminal penalties for those who violate FISA, leak FISA applications, or lie to the FISA Court.
- Gives the FISA Court the authority to prosecute for contempt.
- Prohibits using political opposition research and press reports to get a FISA order.
Provisions to Fix and Open Up the FISA Court
- Allows members of Congress to attend.
- Requires court hearings to be transcribed and made available to Congress.
- Assigns a court-appointed counsel to scrutinize U.S. person surveillance applications.
- Stops the government from shopping for FISA Court judges.
Provisions Reflecting Congress’s Opportunity to Address Political and National Security Concerns
- Enhances the ability of the National Security Agency to target international fentanyl trafficking operations.
- Gives the intelligence community the ability to track Mexican drug cartels’ burner phones.
- Allows all foreigners applying for a visa, immigration, or asylum to be vetted using 702 queries.
“Our role is to scrutinize, to fix, to reform, to revise," said LaHood. "And I think the product that the intelligence committee on the House side has come up with has done exactly that … We have also held numerous listening sessions as a part of this product that we’ll be voting on this month. Those listening sessions have included a lot of skeptics and critics, but also people that have brought a lot of perspective.”
