In a revelation that unfolded on Friday, the Foreign Intelligence Surveillance Court (FISC) released an opinion stating that a U.S. senator, a state senator, and a state judge had been investigated under the FISA Section 702 in June and October of 2022 respectively.
The court, expressing its concerns, deemed these instances as a disregard of the Federal Bureau of Investigation’s (FBI) standard operating procedures.
The disclosure was made public through the FISC’s 2023 opinion by the Director of National Intelligence.
According to Section 702 of the Foreign Intelligence Surveillance Act (FISA), the U.S. government has the authority to monitor non-U.S. citizens located outside the U.S. to gather foreign intelligence.
The FBI is responsible for inquiries involving U.S. citizens identified in these operations.
The FISC, however, found that the three cases in question failed to meet the requisite criteria prescribed by the law.
“The FBI did not properly adhere to the standard procedures, which require prior approval from the Deputy Director before using ‘sensitive query terms’—identifiers of domestic public officials, domestic political candidates, members of the news media, academics, and religious organizations or persons prominent within them,” the opinion stated.
The court further clarified that in June 2022, an analyst had conducted four queries using the last names of a U.S. Senator and a state senator, without further restrictions.
Despite having information about a foreign intelligence service targeting these officials, the querying standard was not met, according to the National Security Division (NSD).
Moreover, in October 2022, a staff operations specialist used the social security number of a state judge who had raised a complaint about alleged civil rights violations by a municipal chief of police. The identities of the individuals involved remain undisclosed.
The FBI confirmed to Fox News that these queries were undertaken due to concerns over a foreign threat, and asserted that both the U.S. senator and state judge inquiries met the “authorized purpose” requirement.
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However, the bureau acknowledged that the senator inquiry was not in alignment with the query standard, and did not receive the pre-approval necessary for sensitive queries. The FBI also admitted that the state judge’s query was unjustified and was conducted without prior approval.
Despite the reported errors, the FISC’s opinion expressed belief in the FBI’s improvement in applying the querying standard. The court also noted the FBI’s compliance rate to be over 98% following the implementation of reforms, with anticipation that these changes should curtail non-compliance issues caused by accidental querying.
Echoing the FISC’s opinion, FBI Director Christopher Wray noted the substantial improvements in the bureau’s compliance with Section 702 after the implementation of numerous reforms. He emphasized the importance of Section 702 in combating foreign threats and acknowledged the bureau’s responsibility to act as responsible stewards of their Section 702 authorities.
Despite criticisms over the misuse of Section 702, Wray pointed out the steps taken by the bureau towards reform. The Office of the Director of National Intelligence indicated a marked decline in the number of queries into U.S. citizens between 2021 and 2022 under Section 702, largely due to changes in the FBI’s systems, processes, and training.
However, in a reflection on past missteps, the FISC’s 2022 opinion revealed the FBI’s misuse of warrantless search powers against U.S. citizens more than 278,000 times in the year ending November 2021.
The people targeted inappropriately included those involved in the Capitol riot on Jan. 6, 2021; George Floyd protesters during the summer of 2020; and donors to a failed congressional candidate.
FISA Section 702, set to sunset on Dec. 31, has triggered bipartisan calls for reforms and increased congressional oversight to ensure its reauthorization. The recent revelations could play a significant role in shaping these discussions.
