Can the FBI be trusted with the power of FISA?

Brian Burch, the president of CatholicVote.org, wants to know why the FBI would consider churches a threat.

Earlier this year, an internal FBI memo leaked by a former employee at the Richmond, Va., bureau stated that “racially or ethnically motivated violent extremists” were increasingly finding common cause with Roman Catholic traditionalists. Burch is also concerned over the memo’s assertion that the FBI is interested in developing covert sources within Catholic parishes in Richmond.

“The attorney general is appalled, the head of the FBI is aghast, and … there’s an internal review,” Burch told me as he explained the bureau’s response to the leak. “That’s essentially ‘trust us.’ Well, that’s not enough. … Congress has the oversight authority of these agencies. They need to demand full transparency and accountability.” Burch is in a legal battle with the FBI for more information about the leaked report.

Many Americans share Burch’s concern that the FBI is misusing its power. A recent survey by the group Issues & Insights found 39 percent of respondents agreed that Congress should reform the FBI, and 23 percent want to see the agency abolished.

Amid deepening mistrust in the FBI, members of Congress must decide whether to reauthorize one of the agency’s most-used investigative tools, Section 702 of the Foreign Intelligence Surveillance Act (FISA). It allows the agency wide powers to collect communication from overseas that might relate to a security threat. Before December, Congress must decide whether to renew Section 702, amend it, or let it expire.

Steven Bradbury, now a distinguished fellow with the executive vice president’s office at the Heritage Foundation, worked as the head of the office of legal counsel at the Department of Justice during President George W. Bush’s second term. He was there prior to the implementation of Section 702 in 2008 and helped the administration weigh the legality of the program. He says the law is vital to national security.

“Section 702 produces more than half of the content of the president’s daily intelligence briefing—some of the most valuable, high-level intelligence gathered by the U.S. comes from section 702,” Bradbury said. “I think at the end of the day, there’s broad agreement about its value.”

Congress passed FISA in 1978, creating a method by which courts dealing with classified matters could approve the surveillance of communications in individual cases. After 9/11, it became apparent that the process moved too slowly to keep up with rapidly developing threats abroad. Congress changed that in 2008 with the introduction of Section 702.

“You don’t have to go through individualized applications for probable cause orders from the FISA courts,” Bradbury said. “Instead, the attorney general and the director of national intelligence jointly approve a plan of surveillance that sets forth the parameters of what we’re going to target. And that plan gets approved by a judge on the FISA court.”

Surveillance of foreign communications is not a new practice for the federal government. The day after the United States declared war on Germany and Japan in 1941, President Franklin D. Roosevelt ordered the surveillance of all correspondence in or out of the country. Since then, appellate courts have upheld a president’s power to use surveillance to defend the homeland.

Section 702 is supposed to protect Americans from unauthorized surveillance. As written, it prohibits intelligence agencies from gathering and accessing the communications of U.S. citizens and others with legal status in the country. Applicants for FISA warrants must show they have reason to believe the target they want to surveil is outside of the United States and presents some sort of security concern. But that’s not what always happens.

Earlier this year, a FISA court released a report detailing how the FBI had used Section 702 powers in 2021 to improperly conduct 278,000 searches of a database of information collected under FISA. They included searches about participants in the Jan. 6 U.S. Capitol riots, Black Lives Matter protesters, and even a congressional campaign.

Last week, the House Judiciary Subcommittee on the Weaponization of the Federal Government met to discuss FISA. Elizabeth Goitein, a senior director for the Brennan Center for Justice at New York University Law School and one of the panelists testifying before Congress, expressed that—in theory—there’s nothing wrong with Section 702. But a disregard for its limitations have called its functionality into question.

“There’s a lot that needs to be done … [We] need to make sure 702 works as intended. It’s not a domestic spying tool.” Goitein said. “For that you need a warrant requirement.”

Rep. Hank Johnson, D-Ga. is the ranking member on the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet. Moments before last week’s committee hearings, Johnson expressed concern that FISA’s approval will become another lengthy debate across party lines. He believes Americans need their lawmakers to keep the conversation about balancing power and privacy.

“I think we’re in a hype-charged political environment right now. The whole issue has been overly politicized. But there is important work that Congress needs to do to minimize the degree of non-compliance with federal law by those who would access information on Americans,” Johnson told me.

Burch of CatholicVote.org has also kept an eye on Congress’ deliberations over FISA and Section 702.

“I do think there needs to be a broad re-thinking of the powers we have given to the federal government for the purposes of law enforcement … many people now believe we have given the government too much power and that as a result of that the number of abuses is only going to grow until they are reined in,” Burch said.