The tyranny of the minority: A post-Charlottesville theory of the First Amendment
FBI chief's claim on surveillance abuse doesn't fit the evidence
I caught my breath when I heard FBI Director Christopher Wray testify to Congress that there's been no abuse of Section 702 of the Foreign Intelligence Surveillance Act (FISA), the law under which our intelligence communities electronically spy on possible terrorists and sometimes capture private communications of innocent U.S. citizens. Section 702 and related components expire Dec. 31, and Congress must decide whether to renew them.
To see if I'd heard Wray correctly, I searched for a transcript of his testimony. I found that he'd delivered the same line during an Oct. 13 Heritage Foundation speech. Wray claimed, "There's been no evidence of any kind of abuse of power under Section 702 despite the oversight ... with the three branches of government and quite a few years of experience now."
As a backdrop, recall that spying on U.S. citizens by our Intel agencies is considered so contrary to our basic constitutional protections, that it's generally prohibited, and is only permitted under strict limits set forth under the law.
With that in mind, here's a short list of documented violations that seem contrary to the implications of Wray's testimony:
- In 2011, the Foreign Intelligence Surveillance Court (FISC) found some collection of internet data by the National Security Agency (NSA) to be illegal and unconstitutional, capturing tens of thousands of U.S. communications without a warrant. That would seem to be an abuse.
- To better protect the rights of U.S. citizens, the government adopted restrictions that "categorically prohibited NSA analysts" from using personal identifiers of Americans, such as our phone numbers, to search through internet information the NSA collects under Section 702. However, the government admitted violating those restrictions to a secret hearing in the Foreign Intelligence Surveillance Court (FISC) on Oct. 26, 2016. According to the judge, NSA analysts had been conducting such searches in violation of the prohibition "with much greater frequency than had previously been disclosed to the court." The judge accused the NSA of an institutional "lack of candor" and stated: "This is a very serious Fourth Amendment issue." That sounds like an abuse.
- Meantime, the NSA secretly expanded its authority to collect emails and other communications of U.S. citizens who had done nothing more than refer to a target in a single instance. For example, if you wrote an email that mentioned a target phrase - it could be "Osama bin Laden" - the NSA could use that as an excuse to spy on you. In 2015, the Foreign Intelligence Surveillance Court criticized the practice saying the results likely netted information on U.S. citizens with "no foreign intelligence value." That seems like an abuse.
- In January 2016, the NSA inspector general issued a top secret report criticizing the NSA for: not having proper processes in place to monitor how well it met key provisions designed to protect Americans; instances of non-compliance; and lack of documentation proving NSA analysts were meeting requirements prohibiting targeting of U.S. persons who were in the United States. The Foreign Intelligence Surveillance Court stated that it appeared "the problem was widespread during all periods under review." That sounds like an abuse.
All of this doesn't even consider the now publicly known incidents in which the NSA surveilled the likes of former members of Congress Dennis Kucinich (D-Ohio) and Jane Harman (D-Calif.), or the communications between congressional staffs and Israeli officials in 2015, or Trump adviser Carter Page during the 2016 campaign.
Remember, FBI Director Wray testified there had been "no evidence of any kind of abuse." Weirdly, nobody from the House Judiciary Committee challenged the accuracy of the statement or asked him to explain it. Are the members of Congress tasked with oversight - the ones who will vote to reauthorize, amend or abolish the surveillance authorities - unaware of the well-documented violations?
Our intelligence community insists the FISA Amendments Act, which includes Section 702, is absolutely critical to our fight against terrorism. Some civil rights activists argue it can be terribly intrusive to the constitutional rights of innocent Americans.
I'm not advocating either way. But to claim there's no evidence of abuse is to ignore the record. It seems like important decisions should be made based on the full facts.
Sharyl Attkisson (@SharylAttkisson) is an Emmy-award winning investigative journalist, author of The New York Times bestsellers "The Smear" and "Stonewalled," and host of Sinclair's Sunday TV program "Full Measure."