Journalists often say they speak truth to power. Why, then, did CBS News allow two former senior intelligence officials to speak from a powerful media perch to make one-sided, misleading claims about our government’s domestic surveillance — and at a time when the statute permitting such surveillance is up for review in Congress?

CBS News could have insisted that former CIA Deputy Director Michael Morell in his podcast, Intelligence Matters, include a civil liberties expert to challenge the assertions made by Glenn Gerstell, a former general counsel at the National Security Agency. Instead, CBS allowed Morell and Gerstell to make disingenuous claims that went unchallenged in their lengthy discussion.

That talk centered on Section 702 of the Foreign Intelligence Surveillance Act, which authorizes the surveillance of foreigners located abroad and is up for reauthorization (or sunset) this year. Congress wrote this authority to catch terrorists and spies, not to catch Americans in investigations unrelated to national security. Gerstell said: “So let’s start with the fact that there’s never been a case of a deliberate misuse of the statute. There’s been no recorded case … no case at all.”

Gerstell cannot be unaware of federal Judge James E. Boasberg’s eye-opening and extraordinary decision to pierce the secrecy surrounding the FISA court by allowing details of the FBI’s shocking abuse of Section 702 to go public. The judge, in a statement released in 2019, found that the FBI’s batch queries were improperly “broad and apparently suspicionless.”

The FBI used Section 702 to investigate people who had participated in FBI community programs, who provided a crime tip, and even those who made repairs in FBI offices. Does that sound like national security to you? These abuses were revealed in a Department of Justice audit that covered a little more than one-tenth of the FBI’s searches. Who knows what violations lurk in the other 90%?

We do know the FBI uses Section 702-derived data to conduct “backdoor” searches of communications, sidestepping the Constitution’s requirement for a warrant. An annual report from the Office of the Director of National Intelligence last April disclosed that the FBI, in a recent 12-month period, conducted as many as 3.4 million such warrantless searches. DOJ spokesmen insist that this number is inflated by the way searches are categorized, as well as by a national security investigation involving Russian cyberattacks. OK. Please, then, tell us the real number of warrantless searches of the public's data. Is it just 1 million? Five hundred thousand?

The FBI has also violated a statutory requirement to acquire an order from the secret court before reviewing Section 702 data about Americans in criminal investigations that do not relate to national security. As of November, however, the FBI has never received such an order. And the FBI has admitted it should have sought such permission for investigations related to domestic crimes such as healthcare fraud, public corruption, and bribery.

What about Gerstell’s NSA? The secret surveillance court found “widespread” violations in searches for communications in databases that were supposed to be off-limits. The government waited months to inform the secret court about the true scope of the violations. This prompted the court to denounce the government for an institutional “lack of candor.” That is not mere chiding. It is a term of art invoked in terminating FBI agents.

Gerstell is narrowly correct that no one has been found guilty of “deliberate misuse” of Section 702. The FISA court has accepted the FBI’s explanation that its many violations of the rules that apply to backdoor searches resulted from ignorance and systemic errors. By acquiescing, the secret court has effectively greenlit these violations. But whether you believe these violations were deliberate, or whether the program’s operation has been marked by gross negligence for its entire 14-year history, the magnitude of these violations is staggering.

Gerstell correctly points out that the surveillance of Trump campaign aide Carter Page, and by extension, a presidential campaign and transition, were not conducted under Section 702: “All those other issues about Carter Page, Steele dossier, blah, blah, blah, that was all under Title I of FISA, which is the statute that provides for a probable cause order. Those were all court-approved.” Gerstell raises an interesting point, but perhaps not the one he intended.

Title I provides safeguards to protect the constitutional rights of Americans when the government seeks permission from the secret FISA court to surveil them on national security grounds. In the case of Page, the Justice Department inspector general found the FBI had misled the court about the partisan origins of Christopher Steele's report and its internal discrediting of the report and its author before relying upon that very report in a warrant application. Add to that an FBI lawyer who submitted a forgery in sworn testimony. Does all that misconduct truly amount to nothing more than a dismissive “blah, blah, blah?”

The Page affair has great relevance to this year’s Section 702 debate. Adam Klein, the former chairman of the Privacy and Civil Liberties Oversight Board, recently observed that if “safeguards at the FBI, the Justice Department, and the FISA court failed to protect Page, then why, skeptics would naturally ask, would they prevent misuse of Section 702? This mistrust centers not on legal texts, but on the institutions and people that use these authorities.”

True enough. But if Section 702 is to be reauthorized at all, Congress needs to add sufficient guardrails to deter such abuse in the future.

Gene Schaerr is the general counsel of the Project for Privacy and Surveillance Accountability, a nonpartisan group of U.S. citizens who advocate greater protection of privacy and civil liberties in government surveillance programs.