Democrat on FISA Last Week: ‘More and More Americans Are Getting Swept Up in the Searches’

By Susan Jones | March 6, 2017 | 8:53 AM EST

Former Sen. Dan Coates (R-Ind.) testifies as his confirmation hearing before the Senate intelligence committee on Feb. 28, 2017. (Screen grab from C-SPAN)

( – “More and more Americans are getting swept up in these (FISA) searches,” Sen. Ron Wyden (D-Oregon) told Congress last week.

“We are trying to legitimately go after foreign targets that are a threat to us. But as telecommunications systems become globally integrated, we’re getting more and more law-abiding citizens swept up.”

Wyden was speaking at the confirmation hearing for former Sen. Dan Coates, nominated to serve as President Trump’s director of national security.

At the same hearing, both Coates and Republican Sen. John Cornyn gave a spirited defense of the law that President Donald Trump now claims was used against him.

At the Feb. 28 hearing of the Senate Select Committee on Intelligence, Wyden told Coates, ‘You have said that if you’re confirmed, the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act would be your top legislative priority.

Wyden continued: "For years, I and members of Congress have been asking for an estimate of how many innocent, law-abiding Americans’ communications are getting swept up in this collection. Will you commit to getting this number to this committee and the public before reauthorization?"

Coates responded:

Yes, I do. I am going to do everything I can to work with Admiral Rogers and NSA to get you that number.  I’ve been told it is an extremely complex process for a number of reasons. As I said, without classification, I don’t know what all these reasons are. (Coates earlier explained he had only recently received his security clearance.)

I need to learn what they are, but I also need to share with Admiral Rogers the need, I think, to get this committee, not just those numbers, but all the information they need, in which to make a judgment as to the reauthorization.

The intelligence community believes that reauthorization is extremely important. It’s a program that has provided a significant amount of intelligence relative to what foreign agents or individuals are trying to do to harm Americans.

And so, you know, it has layers of oversight at all three levels of government, has been examined by the privacy civil liberties board, overseeing board, and supported by the FISA court. But this is something that you will be going through during this next year, and we want to make sure you have all of the information you feel you need to make adjustments that Congress decides to make.

Wyden asked Coates, “So you will commit to making sure we have the number of innocent Americans being swept up before the reauthorization. Will you commit to declassifying any secret legal interpretations related to FISA as well?”

Coates said he would -- as long as declassification would not expose sensitive sources and methods.  

Republicans defend FISA law

Later in the hearing, Sen. John Cornyn (R-Texas) followed up on Wyden’s line of questioning about the number of Americans swept up in FISA intelligence gathering:

“First of all, it is illegal to target American citizens, correct?” Cornyn asked Coates.

“That is correct,” Coates said.

“Without a search warrant,” Cornyn added.

“That is correct,” Coates said again.

“So what we are talking about primarily is targeting foreign intelligence persons overseas,” Cornyn said.

“(Section) 702 is specifically designed for that purpose,” Coates said.

Cornyn said the director of the FBI recently referred to Section 702 as “the crown jewels” of the intelligence community. “Would you agree with that characterization?” he asked Coates.

“I would, and the intelligence community also sees it that way, the entire community,” Coates agreed.

Cornyn said he doesn't want the debate over reauthorization of Section 702 to get “caught up in that same sort of hysteria where some people were worried that their own government was spying on them when that decidedly was untrue. But that’s history,” he added. (A week later, it is no longer history.)

Cornyn continued: “I want people to understand that people aren’t targeted, even foreign agents overseas, without court approval. And there is judicial review from time to time as well as “oversight and review” by both the executive branch, the intelligence community, and the Congress.

“There are layers of protection to make sure that no American has to worry about their own government spying on them. In fact, every conceivable effort is being made to prevent that and protect the privacy rights of Americans, which we all agree is important.

Cornyn asked Coates to work with Congress “to educate” Americans “so that they can be reassured” that Section 702 is striking the “proper balance” between privacy rights and national security:

“Well, Senator, I couldn’t agree with you more,” Coates said.

Coates noted that “we are under attack” and “702 is designed to go after foreign bad guys. It’s lawful collection…In that process, there is some incidental – what is called incidental names of Americans, potential names of Americans, some bad guy might have on his laptop – the names of 40 Americans, and so if he’s targeted for something, all of a sudden 40 American names – now, we put a process in place in devising this law that there is a minimization of this.

Coates said he wouldn’t go into the details of “minimization,” “because I can’t explain it as well as others can. But it is a process that understands that we’re not targeting these people, but incidentally they came up, because they were on this guy’s email or on his phone list.  

“The level of oversight here is all three branches of government, and it is significant to try to secure those privacies.”

But, added Coates, “We need to ensure that the public is not led into a situation where they think they’re, you know, in deference to my colleague from Oregon, sweeping up, collecting information about them. We are trying to sort it out so we can find out if that bad guy in Syria, or wherever, is talking to someone in the United States. We kind of want to know what they’re talking about.”