In my recent testimony before the House Judiciary Committee, I warned that, if Congress reauthorized Section 702 without major changes, we have “become a nation of chumps.” The FBI is once again before Congress after years of systemic and massive abuses of FISA and only a nation of chumps would give them the same authority. With each renewal, the FBI has pledged that it has learned its lesson and would stop its abuses . . . only to continue to abuse the authority. Now, a FISA order indicates that the FBI searched the data of a U.S. Senator, a state senator, and a judge.
Notably, in his recent testimony, FBI Director Christopher Wray tried to blame his predecessor James Comey for the abuses, a claim that was recently undermined in the targeting of Republican staff members. Now, it is equally clear that the abuses have continued on his watch.
FBI employees searched foreign surveillance data for the last names of a U.S. senator and a state senator. It also searched the Social Security number of a state judge who alleged civil rights violations by a municipal chief of police, according to the opinion by the chief judge of the Foreign Intelligence Surveillance Court.
The problem is that Wray has continued to refuse to answer the most basic questions about the FISA abuses, including a baffling denial that he even knew what “parallel construction” means in his testimony before this Committee this week. It was akin to the head of the CDC saying that she did not know what “gain-of-function” research means.
“Parallel construction” has long been a complaint of civil libertarians and defense counsel. It avoids “poisonous tree” problems by replanting the seeds of the evidence to claim independent acquisition. It hides the true origins of evidence from courts and in some cases, Congress. While defendants are supposed to receive notice of Section 702 evidence, parallel construction can be used to evade that obligation. Yet, Wray insists that he has no idea what it means.
The choice is ours: we can be informed citizens or a nation of chumps.