DNI pick Tulsi Gabbard defends controversial foreign spy power she once opposed

Director of National Intelligence-designate Tulsi Gabbard is defending the use of a controversial foreign spy power she once opposed while in Congress, while still pledging to “uphold Americans’ Fourth Amendment right” against warrantless searches of their communications.

Gabbard, 43, issued a rare statement ahead of her confirmation hearing next week promising to maintain the Foreign Intelligence Surveillance Act’s so-called “Section 702” authority if installed as the next chief of all 17 intelligence agencies.

“Section 702, unlike other FISA authorities, is crucial for gathering foreign intelligence on non-US persons abroad,” she said. “This unique capability cannot be replicated and must be safeguarded to protect our nation while ensuring the civil liberties of Americans.”

“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 added in her statement, which was first reported by Punchbowl News.

“Significant FISA reforms have been enacted since my time in Congress to address these issues. 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.”

One Republican aide snarked to The Post that Gabbard’s about-face “sounds like a hostage statement,” as she prepares to be grilled by security-minded Senate lawmakers.

“She is clearly saying this to assuage concerns from intel hawks that she is insufficiently committed to spying on Americans,” the aide said. “Whether she is merely telling them what they want to hear, and intends to implement further reforms once in office, or has truly abandoned major FISA reform as a goal, is an open question.

“Regardless,” this person added, “her assertion that the latest FISA ‘reforms’ substantially resolved her concerns with the program sounds like a hostage statement, as anyone who has been working for a real overhaul knows they didn’t fix the most pressing underlying problems.”

Sen. Tom Cotton (R-Ark.), who is chairing the Intelligence Committee that will consider Gabbard’s nomination, told Punchbowl in a statement that the Hawaiian “assured” him in private meetings “she will follow the law and support its reauthorization as DNI.”

Gabbard’s nomination will likely come before the intelligence committee sometime next week, with a potential vote by the full Senate sometime after President-elect Donald Trump’s inauguration.

Republicans have a 53-47 majority in the Senate, meaning Gabbard can only afford to lose four GOP votes before her nomination fails.

Privacy hawks in the Democratic caucus, like Sen. Ron Wyden (D-Ore.), could also rescue Gabbard, though none have publicly indicated a desire to do so.

Sen. Mark Warner (D-Va.), the intelligence committee’s vice chairman, told reporters Tuesday after meeting with Gabbard: “I had questions going in. I have questions coming out.”

In 2020, then-Democratic Rep. Gabbard introduced a bill ordering the attorney general and director of national intelligence to “destroy” the information of any Americans “swept up” under the FISA program.

The intelligence gathering tool — which Congress reauthorized last year and provides information for a large share of the president’s daily brief — allows the FBI to obtain emails, text messages and other data from potential foreign terrorists without requiring a warrant.

However, critics note that American citizens can be exposed to the same searches if they communicated with targets of an investigation.

Trump, 78, led a rebellion against the bill before its passage, urging Republicans to “KILL FISA.”

“IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!” thundered Trump, referring to the FBI’s well-documented abuses of FISA authority to probe his 2016 campaign for alleged collusion with Russia.

Gabbard’s legislation, which would have also repealed the PATRIOT Act, expressly barred intel agencies from gathering information from US service providers like Google and AT&T “without a valid warrant based on probable cause” — and prohibited the feds from forcing US companies to build “backdoor” access into personal devices and encrypted platforms.

In April, the FISA reauthorization passed the House on a bipartisan basis and narrowly squeaked by the 60-vote Senate filibuster threshold, with proponents touting dozens of reforms to Section 702 — including a drastic reduction in queries of US citizens’ data

Critics, however, have noted how the FBI has delved into US citizens’ data, with House Judiciary Committee Chairman Jim Jordan (R-Ohio) citing a filing in the Foreign Intelligence Surveillance Court where the bureau admitted to wrongfully accessing information at least 278,000 times just in 2021.

Those communications included improperly surveilling both Black Lives Matter-affiliated protesters following the killing of George Floyd by Minneapolis police in May 2020 and supporters of former President Donald Trump who were linked to the Jan. 6, 2021, Capitol riot.

“The FBI wasn’t even following their own rules when they did those searches,” Jordan said during floor debate over the FISA reauthorization bill. “That’s why we need a warrant.”

The bureau claimed in March 2024 that queries of US persons’ Section 702 information plummeted by 98% following internal reforms to the process.

Asked Thursday about Gabbard’s previous lack of faith in FISA, Sen. Markwayne Mullin (R-Okla.) said her position was likely to “change,” as has happened to other critics of the program once they “start getting daily briefings.”

“However, FISA has been abused and FISA was abused when it came after President Trump,” Mullin added. “There’s a big issue with that, and there needs to be some reforms, and we’ve made some reforms on those. But I think when you start getting the briefings that not all members of Congress are privileged to, and especially when she’s doing it on a daily basis, that opinion will probably.”

Gabbard shed her Democratic Party affiliation in 2022 after a brief and unsuccessful presidential bid two years prior. She went on to endorse Trump, 78, at a rally just weeks before the 2024 election.

Her confirmation hearing has been delayed by scores of questions posed by Democrats, according to Mullin.

“The Democrats have chosen to just bombard her and some of the other candidates with a tremendous amount of questioning,” he said. “I was talking to her yesterday, and they had submitted … 197 additional questions. … And then they’re going to sit there and complain that the paperwork is taking too long?

“They’re trying to do everything they can to delay,” he carped. “It’s a national security risk when they’re doing this. The President United States needs to have his advisers and his cabinet in place on Day One and why they’re delaying this is absolutely absurd.”

The Senate intelligence committee’s first hearing of the 119th Congress will be on the nomination of former Rep. John Ratcliffe (R-Texas) to head the Central Intelligence Agency. That is scheduled for Jan. 15.