Section 702 of the Foreign Intelligence Surveillance Act allows the government to engage in surveillance without a warrant, but it can only target non-US Citizens, outside the United States. In other words, if you’re targeting one ISIS member talking to each other in Syria, no warrant is required. However, if the ISIS member is talking to a US citizen or calling New York, a warrant is required for the FBI to listen in to the conversation because of the 4th Amendment prohibition of, “unreasonable searches and seizures.”
A newly declassified yearly report has revealed that the Foreign Intelligence Surveillance Court (FISA) found that the FBI engaged in “widespread violations” of the warrantless surveillance provision of Section 702. According to the Washington Examiner:
The judge said that during an oversight review of a redacted FBI program, the government “discovered 40 queries that had been conducted in support of predicated criminal investigations relating to healthcare fraud, transnational organized crime, violent gangs, domestic terrorism involving racially motivated violent extremists, as well as investigations relating to public corruption and bribery [redacted].” The judge said that “none of these queries was related to national security.”
Boasberg also said, “Another analyst ran a ‘batch query’ using [redacted] accounts as query terms in connection with predicated criminal investigations relating to domestic terrorism that returned 33 Section 702-acquired products,” but the FBI was “unable to confirm whether any products were opened.”
DOJ Inspector General Michael Horowitz released a report in December 2019 that criticized the Justice Department and the FBI for at least 17 “significant errors and omissions” related to the FISA surveillance of former Trump campaign associate Carter Page, who was never charged with a crime and denied any wrongdoing, as well as the heavy reliance on British ex-spy Christopher Steele’s discredited Democratic-funded dossier to obtain the wiretap authority.
Despite the fact that very similar problems were revealed in 2019, the FISA court is still going to allow the FBI to engage in more warrantless surveillance. The head FISA judge, Judge James Boasberg, is allowing the FBI to continue with the program because they’ve made changes to procedures and training and he said there hadn’t been enough time to see if they’ll work. Of course, given that what we’re talking about here is violations of the constitutional rights of Americans, that same rationale could and probably should have been used to temporarily shut down the program.
Very few people have a problem with the FBI listening in on AL-Qaeda, ISIS, Iran, Russia, China, and other potential foreign threat outside of the United States without a warrant. However, when the FBI is regularly violating the constitutional rights of Americans and lying to the court in order to stick their nose into domestic politics, which is what we saw in 2016, there are big problems that need to be addressed. We need the FBI to be non-political, highly competent, and focused on doing things by the book. If that’s not happening, then there need to be consequences. If that means taking away the FBI’s ability to do warrantless surveillance outside of the United States until they can handle the job, so be it. The FBI needs to do it right or not do it at all.
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