Last week, Tulsi Gabbard was officially confirmed as President Trump’s Director of National Intelligence. The former progressive Democratic presidential candidate and former Representative from Hawaii converted to the Republican party in 2024, but before that was steadily becoming a favorite among those in independent and right-leaning circles. However, weeks before her confirmation hearing, Gabbard, like so many others before her, backtracked on her criticism of the Foreign Intelligence Surveillance Act (FISA), Section 702, and is now a proponent of it.
FISA Section 702, after it was renewed and updated last year, allows the National Security Agency (NSA), a subsidiary of the Federal Bureau of Investigation (FBI), to conduct warrantless searches on Americans; along with practically all digital records and telecommunications associated with the individual to be at the NSA’s ready access.
The Electric Frontier Foundation (EFF) summarized in a blog post last year what Section 702 does:
Section 702 is supposed to do exactly what its name promises: collection of foreign intelligence from non-Americans located outside the United States. As the law is written, the intelligence community cannot use Section 702 programs to target Americans, who are protected by the Fourth Amendment’s prohibition on unreasonable searches and seizures. But the law gives the intelligence community space to target foreign intelligence in ways that inherently and intentionally sweep in Americans’ communications.
The bill that was most recently passed, S. 139, endorses nearly all warrantless searches of databases containing Americans’ communications collected under Section 702. It allows for the restarting of “about” collection, an invasive type of surveillance that the NSA ended in 2017 after being criticized by the Foreign Intelligence Surveillance Court for privacy violations. And it includes a six-year sunset, delaying Congress’ best opportunity to debate the limits NSA surveillance.
Moreover, former Fox News host Judge Andrew Napolitano, a strong critic of FISA Section 702, warns: “Since Department of Justice lawyers have persuaded the FISA Court to issue warrants to spy on Americans who communicate with foreigners out to the sixth degree of communication, the NSA has contended that Section 702 also permits it to spy out to the sixth degree. Call your cousin in Geneva and NSA can spy on everyone with whom you speak and everyone to whom they speak and so on, out to the sixth level of communication.”
In 2021 it was reported by Cyber Scoop that the FBI exploited the FISA Act to carry out 3.4 million warrantless searches that year alone.
The Dispatch notes that Gabbard has been a fierce opponent of FISA for years:
When Gabbard represented Hawaii in the House, she repeatedly spoke out against Section 702. In May 2020, she voted against renewing the authority because the reauthorization bill did not have the alterations to the statute she was looking for. “None of the reforms protect the American people from illegal warrantless surveillance. None of the reforms prevent the secret FISA Court from abusing the constitutional rights of Americans. None of the reforms provide real protection against surveillance orders targeted at activities protected under the First Amendment,” she said at the time. Months later, she sponsored a bill to repeal the authority altogether that also would have forced the director of national intelligence and attorney general to destroy any data collected on an American under Section 702, so long as it is not related to an ongoing investigation.
In the lead-up to her nomination in January, Tulsi tried to claim that she was ignorant of what the act entails, but promises to protect 4th Amendment rights of Americans while still keeping this powerful tool of big brother in place. In a statement to Punchbowl News, Gabbard told the publication:
“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.
“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. Significant FISA reforms have been enacted since my time in Congress to address these issues.”
Read the rest of the report for free on Substack:
[7] Who goeth a warfare any time at his own charges? who planteth a vineyard, and eateth not of the fruit thereof? or who feedeth a flock, and eateth not of the milk of the flock? [8] Say I these things as a man? or saith not the law the same also? [9] For it is written in the law of Moses, Thou shalt not muzzle the mouth of the ox that treadeth out the corn. Doth God take care for oxen? [10] Or saith he it altogether for our sakes? For our sakes, no doubt, this is written: that he that ploweth should plow in hope; and that he that thresheth in hope should be partaker of his hope. (1 Corinthians 9:7-10).
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