The New York Times reported Thursday that the warrantless surveillance of Rep. Darin LaHood (R-IL) was a counterintelligence measure.
As Congress inches towards the December deadline to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), a law that allows intelligence agencies to collect communications of targeted foreigners, LaHood made the startling revelation that he believed the FBI surveilled him through Section 702 without “limiters,” as revealed by a Justice Department (DOJ) and Office of the Director of National Intelligence (ODNI) routine audit.
Section 702 may also lead to incidental or even targeted collection of Americans’ communications.
LaHood said during a March House Intelligence Committee 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.
WATCH: Rep. Darin LaHood: “My Opinion” that FBI Surveilled Me Through FISA Spy Authority
“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 continued.
After these revelations, House Intelligence Committee Chairman Mike Turner (R-OH) announced the panel’s working group to reform what is often referred to as the “crown jewel” of American intelligence agencies. LaHood is one of the six members of the bipartisan working group.
The Times reported that sources familiar with the matter said that the warrantless surveillance of LaHood was merely a “defensive measure” to inspect suspicions that a foreign government had targeted him as part of an espionage or covert influence campaign. The Times‘ sources did not divulge which country may have allegedly tried to influence or spy on the Illinois Republican; however, the Times wrote that the FBI’s surveillance of LaHood did occur in 2019 when he was heavily involved in negotiating Chinese trade policies as then-President Donald Trump and Chinese officials discussed a potential trade deal.
Privacy advocates would like to impose a warrant requirement for Section 702 database queries where the subject is an investigative target. However, the Times noted that there has been less discussion about defensive searches when the subject is not believed to have been engaged in wrongdoing.
David Kris, a former senior DOJ official, said that judges could weigh under the “totality of circumstances” if a defensive query would be reasonable.
Sean Vitka, a policy counsel for Demand Progress, a civil liberties group, said that a lower defensive standard for the FBI would still amount to a warrantless search in the context of the Fourth Amendment.
David Segal, a cofounder of Demand Progress, said that the FBI, in response to Demand Progress’s finding about unlawful spying on LaHood, “absurdly argues it shd [should] be able to engage in warrantless surveillance of *potential* *victims* of *future* crimes.”
He added that this is obviously not in accordance with the Fourth Amendment.
Vitka added, citing Elizabeth Goitein, a policy expert at the Brennan Center for Justice, that the FBI almost never complies with the “already existing requirement that the FBI obtain a court order in a painfully narrow set of cases.” The Demand Progress policy counsel said that he would like to hear if LaHood believes that the FBI used his name to surveil for purely defensive reasons.
He added, “Did the FBI not care at all if the espionage effort was successful? And if *purely defensive* queries exist, why didn’t the FBI *get his consent to do this*? The @FBI must also come clean about how many Americans and their communications this unlawful search exposed. How many of @RepLaHood ‘s own voters’ Fourth Amendment rights were violated by this search??? The opacity screams.”
Sean Moran is a policy reporter for Breitbart News. Follow him on Twitter @SeanMoran3.