Tulsi Gabbard, who was nominated by President-elect Donald Trump to be Director of National Intelligence (DNI), has changed her position on Section 702 of the Foreign Intelligence Surveillance Act (FISA). This marks a major departure from her past opposition to intelligence-gathering programs, as reported by Punchbowl News. The reversal was made in an apparent attempt to quell Republican skepticism about her confirmation.
Reversal
The newspaper said Gabbard, who once opposed domestic surveillance on principle, now believes the plan is “critically important.” Punchbowl writes,
In her first public comments since being nominated, Gabbard said in an exclusive statement that she now supports Section 702, calling the program “critically important” and “protecting Americans' civil liberties.” “It must be protected in order to protect the nation while ensuring security.”
Gabbard also clarified that as spy in chief, she would balance protecting the privacy rights of Americans with keeping a “vital” domestic spying tool alive.
“If confirmed as DNI, I will defend the Fourth Amendment rights of the American people while maintaining critical national security measures like Section 702 to ensure the safety and freedom of the American people.” “We will,” Gabbard said.
Given the track record of government overreach made possible thanks to this legal threat (see also here and here), one can't help but wonder how she plans to accomplish this miraculous feat.
Gabbard's previous stance
During her eight years in Congress, Gabbard was an outspoken critic of Section 702, citing its invasion of privacy and misuse by intelligence agencies. In 2020, she introduced a bill called the Brave Whistleblower Protection Act that would repeal Section 702. At the time, she called the provision “insane” and “a direct threat to the civil liberties of Americans.” At that time, Gabbard introduced two additional resolutions. 1162 and H. Res. 1175, supported Edward Snowden and Julian Assange, respectively, who exposed government overreach and mass surveillance programs that sparked a global debate about privacy, accountability, and the limits of state power. Gabbard's voting record has consistently been consistent with these views, as she opposed reauthorization efforts.
As The Wall Street Journal recalled, in a 2018 speech before the full House of Representatives, Gabbard said:
The surveillance powers granted under Section 702 are being abused and violating the constitutional rights of Americans. This program must either be reformed to ensure accountability or be abolished entirely.
This record of opposition appears to have caused alarm among Senate Republicans, particularly national security hawks, during her confirmation process.
FISA reform?
In an exclusive statement to Punchbowl, Gabbard defended her reversal on Section 702, citing what she called recent FISA reforms.
My previous concerns about FISA were based on inadequate protections of civil liberties, particularly regarding the FBI's abuse of warrantless search powers against American citizens. To address these issues, important FISA reforms have been enacted since my time in Congress.
The “significant FISA reforms” Gabbard referred to are likely to involve operational and policy changes introduced in 2020, rather than a comprehensive legislative overhaul.
These measures also included stricter internal guidelines within the FBI requiring higher-level approval for questions involving U.S. citizens. The agency has also introduced accountability measures, including enhanced training programs and audit protocols, to prevent unauthorized searches of Section 702 data. In addition, intelligence agencies sought to increase transparency by releasing more detailed reports on the use of their surveillance powers, including the frequency of searches involving Americans.
These operational changes were reported to have measurably reduced warrantless searches of Americans' communications, but critics argued they were insufficient. Without legislative action to provide clear legal protections, concerns about systemic abuse of Section 702 remain.
Indeed, warrantless surveillance under FISA continued to be widespread. As Rep. Barry Moore (R-Ala.) highlighted last February, the FBI invoked this law nearly 300,000 times to surveil Americans in 2021. This included, most notably, then-President Trump (FISA was also used to spy on the Trump campaign in 2016).
In April 2024, President Trump expressed strong opposition to FISA reauthorization, particularly Section 702, as a political target for such surveillance. “Kill FISA,” President Trump posted on his social media platform Truth Social.
Republicans and FISA
Remarkably, Gabbard's reversal came in an apparent effort to placate Republican senators reluctant to confirm her. One of them is Senate Intelligence Committee Chairman Tom Cotton (R-Arkansas). In the wake of Gabbard's flip, he expressed cautious optimism about her position. According to a report from Punchbowl,
“During our conversation, Tulsi Gabbard assured me that she supports the recently amended Section 702 and supports her reauthorization as a DNI in accordance with the law,” Cotton said.
Cotton's claim that Gabbard supports Section 702 “as recently amended” masks the fact that there has been no legislative change to the section since 2018, a masterpiece of gaslighting. It is.
The other Republican on the Senate Intelligence Committee, Sen. James Lankford (R-Okla.), suggested that Gabbard would no longer say she opposes Section 702 in order to win confirmation. he told the Wall Street Journal last Tuesday.
If she came out and said, “No, I want to oppose all the authority of the 702,” it would literally shut down all the defense rallies.
Despite long-standing conservative criticism of domestic spies, a large faction of the Republican Party, led by House Speaker Mike Johnson (who, like Ms. Gabbard, was once a fierce opponent of FISA), cited the importance of counterterrorism measures. , voted in favor of reauthorizing Section 702 in 2023. The decision sparked a backlash from constitutional conservatives, who argued that FISA undermines the Fourth Amendment.
What is FISA and Section 702?
The Foreign Intelligence Surveillance Act, enacted in 1978, regulates surveillance of foreign organizations and individuals suspected of espionage or terrorism. In 2008, Section 702 was added to allow warrantless surveillance of non-U.S. nationals abroad. However, this provision is highly controversial because it incidentally collects Americans' communications, raising concerns about violating Fourth Amendment protections.
This happened because Section 702 removed an earlier provision that required the government to obtain a warrant from a specialized FISA court before intercepting communications between a U.S. person and a foreign entity. Government agencies still must seek approval from the FISA court for surveillance activities, but the court has faced criticism for routinely approving requests without fully vetting the specific targets.
