WASHINGTON (CN) — Members of the Senate Judiciary Committee Tuesday demanded that the FBI’s most senior official weigh in on legislative efforts to extend a controversial foreign surveillance law, which some critics argue is prone to abuse.
Congress is currently debating whether to reauthorize the provision, contained in Section 702 of the Foreign Intelligence Surveillance Act, which allows federal law enforcement to conduct searches and surveillance on foreign nationals using U.S. communications services. Under the law agencies can conduct such surveillance without first receiving a warrant.
Section 702, first added to the act in 2008, is set to expire at the end of the year. Some lawmakers say the provision should be renewed, citing its value as a counterterrorism tool — but others argue that the government should abandon such warrantless searches, contending that the policy is opaque and ripe for abuse.
Both White House and federal law enforcement have thrown their support behind reauthorizing Section 702, a position that FBI Director Christopher Wray reiterated during a Senate Judiciary Committee hearing Tuesday.
Wray, invited to testify before lawmakers, said the FBI’s Section 702 capabilities are “indispensable” in its efforts to monitor and deter cyber attacks, terrorism and threats from state actors.
“The expiration of our 702 authorities would be devastating to the FBI’s ability to protect Americans from those threats,” he added, arguing that such a move would be akin to “unilateral disarmament.”
Some lawmakers on the Judiciary Committee, including panel chair Dick Durbin, concurred.
“There is no question that Section 702 is a critical tool for collecting foreign intelligence and protecting America,” the Illinois Democrat said.
Texas Republican John Cornyn called the provision “one of the most important laws that the American people have never heard of.”
However, both Durbin and Cornyn acknowledged that they were concerned about the provision’s policy of warrantless searches, pointing out the possibility that law enforcement could abuse Section 702 to surveil innocent American citizens.
Wray replied that the FBI is working to address transparency issues in its foreign surveillance program, improving training and building out oversight by standing up an internal auditor to monitor the agency’s compliance with the Foreign Intelligence Surveillance Act.
Under current law, it is illegal to target an American citizen for surveillance without first demonstrating probably cause to a judge, he added.
Some members of the Judiciary Committee, though, were not satisfied with the director’s explanation.
“We have absolutely no reason to trust you,” Utah Republican Mike Lee said, “because you haven’t behaved in a manner that is trustworthy.”
Lee grilled Wray on reports that federal law enforcement, under the federal law, had conducted illegal surveillance on a U.S. senator; on Americans who were in and around the Capitol during the Jan. 6, 2021, insurrection; and on others involved in protests during the summer of 2020.
The abuses Lee laid out all took place before the agency implemented its reform effort, the FBI director countered, saying things had changed since then.
“I have been encouraged by recent data showing the significant positive impact that those reforms have had,” Wray said.
Lee wasn’t convinced. “I’ve been on this committee for 13 years," he said. “I’ve expressed concerns to FBI directors appointed by presidents of both parties in three different presidential administrations. Every darn one has told me the same thing… It’s never different. You haven’t changed.”
Republicans aren’t the only lawmakers who have reservations about Section 702 authority. In a Nov. 29 letter to House and Senate leadership, a cadre of more than 50 Democratic and Republican lawmakers urged against extending the provision as part of the upcoming National Defense Reauthorization Act.
“A temporary extension would be entirely unnecessary, and it would be an inexcusable violation of the public’s trust to quietly greenlight an authority that has been flagrantly abused,” the wrote.
Meanwhile, lawmakers needled Wray Tuesday about a slate of other policy issues. Republicans had several heated exchanges with the FBI director over a withdrawn memo from the agency’s Richmond field office which laid out a potential investigation into violent extremism among Catholics.
Wray said he was “aghast” when he saw the communique and told lawmakers emphatically that the FBI does not target individuals based on Constitutionally protected religious expression. He added that the employees who prepared the Richmond brief had been “admonished.”
For those following the Judiciary committee, Tuesday’s hearing was a somewhat jarring return to normalcy for a panel that had just days before been rocked by a partisan blowout.
The upper chamber’s legal affairs committee felt on the verge of a nuclear meltdown Thursday as Republican members walked out of a Democrat-led vote to issue subpoenas to a pair of influential conservative figures connected to lawmakers' ongoing Supreme Court ethics probe.
Some GOP senators, including Judiciary Committee Ranking Member Lindsey Graham, had suggested last week’s standoff would spell the end for bipartisanship on the panel. Despite those grave warnings, however, neither Democrats nor Republicans made mention Tuesday of the subpoena row.
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