FBI’s use of spying law draws scrutiny from NC’s Thom Tillis and Ted Budd

As Congress returns from its August recess, members of North Carolina’s delegation will have to decide where they stand on an issue that has often left them divided.

Should the government be able to monitor the electronic communications of foreign nationals and if so, what checks and balances are in place to prevent that type of monitoring from being misused on American citizens?

In the past, North Carolina’s senators, Thom Tillis and Richard Burr, both Republicans, agreed on the importance of a provision in federal law governing that question. But Burr’s successor, freshman Republican Sen. Ted Budd, did not support renewing the legislation as a member of the House.

On Dec. 31, that provision, Section 702 of the Foreign Intelligence Surveillance Act, is set to expire. It was created following 9/11 as a means to prevent terrorist attacks, monitor foreign adversaries and keep up with cybersecurity efforts meant to harm the country.

But in the program’s first 15 years, the FBI reportedly misused FISA to gather intelligence on U.S. citizens while investigating former President Donald Trump’s 2016 campaign’s ties to Russia, according to testimony by Inspector General Michael Horowitz. It was also misused against suspects in the Jan. 6, 2021, attacks on the U.S. Capitol, according to an independent report commissioned by White House officials and released in late July. And it was improperly used while monitoring an unidentified U.S. senator and state politician, The Hill reported.

Both Tillis and Budd said in written statements to McClatchy this month that the provision is important for gathering intelligence. But they both share reservations in how the FBI has used it.

“Senator Budd believes that FISA Section 702 is an important intelligence tool, but there have been too many concerning abuses by the FBI, including improper searches of 702 derived data,” Budd’s staff said in a written statement to McClatchy. “As a member of the Armed Services Committee, Senator Budd will be closely watching how the debate plays out this fall, including recommendations for how to improve privacy and civil liberty protections for U.S. citizens.”

Taking away the FBI’s access to Section 702 does not appear to be under consideration if the program is renewed. The White House report notes that the FBI is the only entity within the intelligence community that focuses on threats within the United States.

“CIA, NSA, and (National Counterterrorism Center) properly lack the mission and authority to focus domestically, so eliminating — or even severely constraining — FBI’s ability to access Section 702 information for intelligence purposes would make America significantly less safe,” the report states. “FBI must have the tools it needs to do its job, but given FBI’s compliance record with respect to its queries of FISA data, there is no question that reforms are needed.”

Tillis spent a day in June in a Senate Judiciary Committee meeting about Section 702 and urged his colleagues to pass the bill, but not without reforms.

This month, he told McClatchy in a written statement that Congress needs to strike a correct balance between vigilantly protecting the constitutional privacy rights of U.S. citizens and protecting the country’s safety and security.

“Law enforcement personnel need to be armed with tools they need to detect and respond to increasingly sophisticated threats from our nation’s adversaries,” Tillis wrote. “There have also been disturbing documented abuses of FISA that cannot be repeated.”

Tillis’ statement also said that Congress must account for robust Fourth Amendment safeguards as it reauthorizes Section 702. The Fourth Amendment of the U.S. Constitution protects American citizens from unreasonable searches and seizures by the U.S. government.

The stakes are high. A U.S. intelligence official told McClatchy that 60% of the material in the president’s daily briefs rely on information collected using Section 702 – and that 70% of the country’s counterproliferation efforts, monitoring the movement and construction of weapons of mass destruction, rely on the tool.

“Our ability to identify new threats would be severely diminished,” the intelligence official said, asked what would happen if Congress were to fail to reauthorize Section 702.

“And our ability to reproduce this in some other way would never be matched – it is just not going to be possible. It will be the difference between preventing an attack and investigating it after the fact.”

2018 authorization

The last time Congress reauthorized the program was in 2018. Burr, who at the time served as the chairman of the Senate Intelligence Committee, called FISA “the single most important national security tool.”

“This bill will help us to fulfill our most important duty as senators: keeping Americans safe,” Burr said then.

He added that Section 702 had been reviewed repeatedly by both the courts and Congress and said it was “not just constitutional, but vital to our country’s defense.”

In the House, his colleagues weren’t so sure.

Reps. Virginia Foxx, Richard Hudson and David Rouzer, three Republicans who remain in their congressional seats, voted in favor of the bill. So did Republican Reps. George Holding, Robert Pittenger and Mark Walker, who have since left office.

Reps. Alma Adams, a Democrat from Charlotte, and Patrick McHenry, a Republican from Denver, both failed to cast votes that day.

Republicans Ted Budd, Walter Jones and Mark Meadows and Democrats G.K. Butterfield and David Price voted against the bill. All five no longer hold seats in the House. Budd replaced Burr in the Senate.

That same year, Budd told The News & Record, during a campaign interview, that the FBI had abused its powers in using FISA applications.

FBI misuse

Tillis’ own frustration over that use would bubble up during a 2019 committee hearing after the release of a more than 400-page report by Horowitz that revealed the FBI failed to follow its own protocol when it applied for a FISA warrant to monitor Trump campaign adviser Carter Page.

Horowitz came before the Senate Judiciary Committee to discuss his report on an FBI investigation into whether there were ties between Russia and former President Donald Trump’s 2016 election. Republicans were arguing that the investigation was driven by politics.

Horowitz quickly told the committee, though, that the probe was not politically motivated, and his report concluded that the FBI had enough information to open its investigation.

But Horowitz identified systematic failures in how the FBI investigation was both done and overseen.

Tillis, who continues to serve on the Judiciary Committee, said the top brass within the Department of Justice had “turned a blind eye” to “damning evidence” that undermined the Steele dossier, a report that made unsubstantiated claims about Trump.

Sen. Mike Lee, a Republican from Utah, was sitting in the committee hearing with Tillis. Lee had been a longtime opponent of Section 702, saying that while collecting intelligence on foreign suspects is important, it opened the door to spying on U.S. citizens who speak with foreign nationals, and once the intelligence community collected that information it was fair game for law enforcement to access it without a warrant.

Tillis gave Lee credit for being right about his concerns about possible abuses of Section 702.

Renewal

Four years later, Tillis still wants Section 702 renewed,. but not without changes to prevent abuse of the system.

“I’m trying to figure out how we get to reauthorizing Section 702,” Tillis said in the June hearing. “It would be irresponsible of us not to. I’m trying to figure out a way to do it.”

The ACLU wants Congress to put strong measures in place to protect Americans from Fourth Amendment violations if the provision is renewed.

“The reform debate is about this program’s broad intrusion on Americans’ privacy,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “If the purpose of Section 702 is to target foreigners for intelligence purposes, as officials often say, then they should stop stonewalling robust protections for Americans.”

Tillis said in the hearing that he recently visited the FBI offices to learn about changes the agency made to the program to guard against misuse of Section 702. He urged the agency to quickly provide a legislative proposal on those changes that lawmakers in support of the program could codify.

A month later, on July 31, National Security Advisor Jake Sullivan made a push for passage of the provision, calling Section 702 “one of the nation’s most critical intelligence tools.”

The White House’s independent report includes suggestions to provide the FBI with additional training on what foreign intelligence means, establish a more rigorous pre-approval process for Section 702, designate and train an FBI compliance officer and declassify, as much as possible, categories of items collected under 702 to enhance transparency.

The President’s Intelligence Advisory Board authorized the release of previously classified documents showing that Section 702 helped the U.S. respond to threats from China, understand Russia’s attacks on Ukraine, find and eliminate terrorists, mitigate a ransomware attack on the Colonial Pipeline and disrupt fentanyl trafficking.

Fentanyl

Disruption of the fentanyl pipeline into the United States may have a major impact on lawmakers when making a decision.

Fentanyl, a deadly drug when taken in high doses or mixed with other narcotics, has become an epidemic law enforcement works daily to combat.

In 2021, 4,041 people died of a drug overdose in North Carolina, and more than 77% likely died from fentanyl, according to a North Carolina Department of Health and Human Services report.

National security and intelligence officials told McClatchy that the main avenues for smuggling fentanyl into the country go through the southern border. Section 702 has allowed intelligence agencies and border enforcement to understand and monitor the entire supply chain of the drug, from its precursor chemicals – largely produced in China – to their shipment and processing in Mexico, where cartels then smuggle them up north.

The ability to monitor that process from start to finish provides U.S. intelligence and law enforcement officials with more opportunities to disrupt the trade of a drug that, compared with other narcotics, is exceptionally easy to produce and to hide. And as smugglers work to adapt to evolving screening techniques, Section 702 allows U.S. officials to monitor their shifting strategies in real time.

“702 is really the only source of information that allows us to stay dynamic in thwarting the threat,” the intelligence official said.

Tillis recently sponsored three pieces of legislation targeting fentanyl trafficking:

• Senate Bill 1507, the POWER Act, would give state and local law enforcement high-tech devices, like the ones used by federal law enforcement at U.S. ports of entry, to detect and identify drugs like fentanyl. These devices use laser technology to analyze potentially harmful substances and identify them through a library of thousands of compounds.

• The FEND off Fentanyl Act would impose sanctions on those trafficking fentanyl and its precursors by transnational criminal organizations, including the cartels.

• The Protecting Americans from Fentanyl Trafficking Act of 2023 would place related drugs into schedule I of the Controlled Substances Act, which means they have a high potential for abuse, have no accepted medicinal value and are subject to regulatory controls, administrative, civil and criminal penalties.

Other members of North Carolina’s congressional delegation from both sides of the aisle have sponsored similar legislation to prevent fentanyl trafficking and deaths.