Sen. Mike Lee (R-UT) told Breitbart News in an exclusive interview that there is “no chance in hell” that Congress reauthorizes the “crown jewel” for American intelligence agencies without a major fight from progressive and conservative lawmakers that want to reform the program.
Lee spoke to Breitbart News as Section 702 of the Foreign Intelligence Surveillance Act (FISA), a law that the federal government believes allows intelligence agencies to collect communications of targeted foreigners, will expire at the end of December unless Congress reauthorizes the controversial program. Essentially, the National Security Agency (NSA) can order email services like Google’s Gmail to turn over copies of messages or network operators such as AT&T or Verizon to intercept and furnish copies of phone calls, texts, and internet communications to or from a foreign target. This may also lead to incidental bulk collection of American citizens’ information, which civil liberties advocates often say amounts to warrantless surveillance of Americans.
The government stores the raw bulk collection of data it collects under Section 702 in a database that intelligence agencies can query by using Americans’ names, Social Security numbers, passport numbers, phone numbers, email addresses, and other personally identifiable information.
The looming deadline leaves an opportunity for lawmakers that are often sharply critical of Section 702 to fight for reform of the contentious program.
“As far as I’m concerned, there’s no chance in hell we’re going to reauthorize FISA without major reforms, at least not a major fight on my part and on the part of many of my colleagues from both parties,” Lee told Breitbart News.
Lee has been one of the leading advocates for FISA reform and has struck compromises that nearly led to significant reform of FISA.
In 2020, Lee reached an agreement with then-Sen. Pat Leahy (D-VT) that to led the Senate to adopt the proposal known as the Lee-Leahy amendment. According to a press release, the legislation would:
… strengthen third-party oversight of the FISA process. Specifically, it requires FISA court judges to appoint an amicus curae (a neutral third-party observer) in any case involving a “sensitive investigative matter” so long as the FISA court does not determine it to be inappropriate.
The amendment will also empower the amicus to raise any issue with the court at any time and give both the amicus and the FISA court access to all documents and information related to the surveillance application.
The bill with the Lee-Leahy amendment, or the USA FREEDOM Reauthorization Act of 2020, ultimately died in the House after the House disagreed with Senate amendments to the bill and tried to move to a conference on the bill.
Progressive Democrats such as Sen. Ron Wyden (D-OR) and Rep. Pramila Jayapal (D-WA) as well as conservatives including Rep. Andy Biggs (R-AZ), Sen. Steve Daines (R-MT), and Lee have called for reform.
A routine audit conducted by the Department of Justice (DOJ) and Office of the National Director of Intelligence (ODNI) of Section 702 use found that FBI agents often had political overtones for their search queries of the FISA database. This includes “the names of a local political party” to see if it had links to foreign intelligence. The Justice Department reportedly claimed that FBI personnel “misunderstood” the search procedures and that they were “subsequently reminded of how to correctly apply the query rules.”
Lee said that, although the federal government has claimed that they have “internal procedures” to prevent abuse, there should be little resistance to codify these internal procedures to prevent abuse via legislation. The Utah conservative blasted the “blatant noncompliance” by federal agents.
He explained, “It’s not a question of if but when, and how often and where it’ll be abused. And so, but over time, they have been pushed back hard and they’ve said, look, we’ve got all these internal procedures. You don’t need to worry about this because we’ve got such robust procedures inside to make sure that it can’t be abused.”
Lee asked rhetorically, “If your procedures really do prevent any of this kind of abuse, and if what you’re suggesting to me is that it’s the functional equivalent of a word requirement, then why would you oppose it? Legislation that I’ve introduced over the years in different forms? Why resist efforts to insert such a requirement into the statute?”
He joked, “This is, you know, these aren’t the droids you’re looking for.”
Although many Americans have been incidentally surveilled through Section 702, the federal government audit revealed that an unnamed congressman had been surveilled without any “limiters.” Rep. Darin LaHood (R-IL), a member of the House Intelligence Committee, said during a hearing on Thursday that, after reviewing classified information on the surveillance of the unnamed congressman, he concluded that he was the lawmaker that was surveilled. LaHood said during the hearing:
I think that the report’s characterization of this FBI analyst’s action as a mere misunderstanding of the querying procedures is indicative of the culture that the FBI has come to expect and tolerate. It is also indicative of the continued failure to appreciate how the misuse of this authority is seen on Capitol Hill. And I want to make clear, the FBI’s inappropriate querying of a duly-elected member of Congress is egregious and a violation that not only degrades the trust in FISA but is viewed as a threat to the separation of powers.
“I have had the opportunity to review the classified summary of this violation and it is my opinion that the member of Congress that was wrongfully queried multiple times solely by his name was in fact me. Now, this careless abuse of this critical tool by the FBI is unfortunate,” he revealed.
Lee said of reports that the then-unnamed lawmaker was surveilled, “If the FBI can’t comply with even the really low bar that’s been required by the FISA court, I think that clarifies all doubt. I never had any doubt that we needed Congress to step in, we needed to change it.”
Although Lee cautioned that it remains possible that congressional leaders can slip a blanket FISA reauthorization into a must-pass spending bill, he remains highly optimistic that deep state-skeptic lawmakers can pass FISA reform.
“Assuming we have the chance to consider this on its own, I think it’s it’s very, very likely that we get this done. So I think we need to keep the pressure up, to make sure that we are able to debate, discuss this thing on its own merits rather than allowing it to be slipped in somewhere,” Lee said.
Sean Moran is a policy reporter for Breitbart News. Follow him on Twitter @SeanMoran3.