President-elect Donald Trump has railed against the Foreign Intelligence Surveillance Act as a tool of the “deep state,” but his nominees for key positions keep endorsing the most controversial section of the spying law during their Senate confirmation hearings.
CIA director nominee John Ratcliffe on Wednesday voiced support for Section 702 of the law, which allows “backdoor” searches on Americans, days after national intelligence director nominee Tulsi Gabbard flip-flopped to support the provision. Attorney general nominee Pam Bondi staked out a more ambiguous position while calling the law “very important.”
Overall, that leaves FBI director nominee Kash Patel as the sole intelligence pick to overtly oppose the law. The growing support among Trump nominees was summed up in a comment Ratcliffe made during his Senate Intelligence Committee hearing.
“It is critical. It is indispensable. And for critics of it, no one has offered a replacement,” Ratcliffe said.
For years, civil liberties advocates have begged Congress to reform FISA, which lays out how the federal government can collect and use intelligence collection ostensibly directed at foreigners.
Under the law, the government is barred from targeting U.S. residents, but critics say it has gaping loopholes. Americans’ international conversations can be caught up in the NSA dragnet. Once the NSA has scooped up the phone calls, text messages, and emails of supposedly foreign communications, the law allows the government to search that haul for information on U.S. persons.
The FBI conducted 200,000 “backdoor searches” in 2022 alone. The same year, the FBI violated its own rules thousands of times, turning up information on the communications of journalists, racial justice protestors and members of Congress.
Privacy advocates have long sought a requirement that the FBI obtain a warrant before sifting through the intelligence collection for information on Americans.
In his CIA director hearing before the Senate Intelligence Committee Wednesday, however, Ratcliffe dismissed the idea when asked whether he would support a warrant requirement.
“The answer is no,” Ratcliffe said. “The danger there is that you really don’t have the information to obtain the warrant. And the process of obtaining the warrant, we’re talking about national security issues where sometimes minutes matter, in the ability to disrupt or interdict the bad actors, or to act upon the intelligence that you can gain from that.”
Bondi, the attorney general nominee, gave a slightly more ambivalent answer under questioning during her Senate Judiciary Committee hearing. Sen. John Cornyn, R-Texas, a strong supporter of the law, asked Bondi whether she would back reauthorizing the law when it expires in 2026.
“We will closely be looking at that. FISA is a very important tool,” Bondi said.
Bondi is seen as one of Trump’s safer choices in terms of winning Senate confirmation. His pick to serve as the director of national intelligence, Gabbard, could face a more complicated road given her decision to meet with former Syrian dictator Bashar al-Assad in 2017 and her echoing of Trump’s criticisms of the “deep state.”
Gabbard, a former U.S. representative from Hawaii, was long a vocal critic of Section 702. In a statement to media outlets last week, however, she called it a “unique capability” and backed reauthorizing it in the future.
“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. Significant FISA reforms have been enacted since my time in Congress to address these issues. If confirmed as DNI, I will uphold Americans’ Fourth Amendment rights while maintaining vital national security tools like Section 702 to ensure the safety and freedom of the American people,” Gabbard said.
Gabbard’s conversion to surveillance supporter was an astonishing change of heart for the Democrat-turned-Republican who made a name for herself by criticizing the national security establishment.
Her pivot seemed to catch longtime FISA critic Sen. Mike Lee, R-Utah, off-guard. When he was asked about her statement expressing satisfaction with prior changes, Lee said those reforms were “fake.”
“I haven’t talked to her about those yet, but if that’s what she is saying, I disagree with her. I will still vote for her, of course. I will have a chat with her because she might not be taking into account a couple of factors,” Lee told reporters Wednesday.
With Gabbard’s support for the surveillance law on record, Patel is the leading Trump choice remaining as a critic. He has previously said the law needs “major, major reform.”
Trump himself signed a reauthorization of the law in 2018 that did not include key reforms sought by privacy advocates, including a warrant requirement for Section 702 searches about Americans.
Last year, however, he almost single-handedly derailed the law’s reauthorization by speaking out on social media: “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!”
Trump was mad about a separate provision of the law, which was misused by the FBI to spy on one of his 2016 campaign advisers, Carter Page.
“In the end, it’s going to be Donald Trump who decides what the administration’s policy on 702 is going to be.”
One privacy advocate said that it may matter less what Trump’s nominees say during the confirmation process than what the president-elect does once he’s in office.
“In the end, it’s going to be Donald Trump who decides what the administration’s policy on 702 is going to be,” Kia Hamadanchy, a senior policy counsel at the ACLU, said in an email. “And while I think he’s a complete wildcard on the issue, the reason you’ve seen so many Republican Senators raise it in the confirmation process for nominees is there’s real doubts in terms of what approach Trump is going to take on 702.”
