Tulsi Gabbard's prior opposition to FISA Sec. 702 could cause problems during Senate confirmation
President-elect Donald Trump selected former Rep. Tulsi Gabbard (D-HI) to serve as his director of national intelligence, but her confirmation process in the Senate may have hit a major obstacle.
Reports indicate that some senators have serious concerns about Gabbard's changed stance on a key surveillance tool utilized by the intelligence community -- Section 702 of the Foreign Intelligence Surveillance Act, according to the Business Times.
Gabbard was previously a fierce critic of Section 702 and even sought to repeal it when she was in Congress because of the threat it poses to civil liberties, but now she claims to be satisfied that such liberties are protected by recent reforms to the law.
Gabbard now claims to support FISA Section 702 surveillance authority
Punchbowl News reported last week that as former Rep. Gabbard has been meeting with senators ahead of her confirmation hearings, a significant sticking point that has emerged for some has been her vehement opposition in the past against FISA's Section 702, which allows for the collection and monitoring of the electronic communications of foreigners -- and citizens they may be in contact with -- who may pose a threat to national security.
Despite having previously sought to repeal the Section 702 program, Gabbard has now stated that she views it as a "crucial" tool for the intelligence community that "must be safeguarded to protect our nation while ensuring the civil liberties of Americans."
"If confirmed as DNI, I will uphold Americans’ Fourth Amendment rights while maintaining vital national security tools like Section 702 to ensure the safety and freedom of the American people," she said in a statement last week.
"My prior concerns about FISA were based on insufficient protections for civil liberties, particularly regarding the FBI’s misuse of warrantless search powers on American citizens," Gabbard explained of her about-face. "Significant FISA reforms have been enacted since my time in Congress to address these issues."
Gabbard once tried to repeal Section 702 authority
The Punchbowl report suggested that while some Republican senators may be satisfied with Gabbard's explanation for why her position on FISA Section 702 has changed so dramatically, others likely remain skeptical and will probably raise it as an issue during her upcoming confirmation hearings.
Those skeptics will have plenty to question Gabbard about when the time comes, including her last-minute effort in late 2020 to legislatively repeal Section 702 authority before she left Congress, according to The Hill at the time.
Dubbed the Protect Our Civil Liberties Act, which she jointly introduced with Rep. Thomas Massie (R-KY), the bill would have repealed both Section 702 of FISA as well as the Patriot Act, both of which the lawmakers asserted had been grossly abused by the intelligence community to spy on U.S. citizens in violation of their civil liberties and right to privacy.
That bill, if passed, would ensure that Congress "reexamines how best to strike this balance of protecting our national security interests while also ensuring that the constitutional rights of every single American is preserved," Gabbard said in a statement at that time, which was necessary because the intelligence community to that point "has not been transparent or honest with the American people or even Congress about what they’ve been doing."
Some senators still have questions while others appear satisfied
ABC News reported on the possible stumbling block for Gabbard's Senate confirmation as DNI and revealed that one of the main skeptics of her altered stance on FISA Section 702 is Sen. James Lankford (R-OK), a prominent member of the Senate Intelligence Committee, who noted in a recent interview that she would now be the "spokesman" for the same surveillance authority she previously voted against every time reauthorization came up during her eight years in Congress.
"If she comes out and says, 'No, I want to oppose all 702 authority' -- that literally shuts down all of our national defense gathering," Lankford mused. "Now, I don't think that that's what she's going to say at all, and I've had an opportunity to be able to sit down with her, but she's going to get a fair hearing to be able to put those things out there and to say, 'This is what I believe about these issues.' And I think it's the right thing to do."
One critical senator Gabbard appears to have won over, however, is the intel committee's chairman, Sen. Tom Cotton (R-AR), who told the outlet, "Tulsi Gabbard has assured me in our conversations that she supports Section 702 as recently amended and that she will follow the law and support its reauthorization as DNI."