Section 702 surveillance powers remain ‘indispensable,’ CIA pick Ratcliffe says

John Ratcliffe, President-elect Donald Trump’s choice to lead the CIA, offered his full-throated support on Wednesday for a warrantless surveillance tool that is up for renewal next year, potentially putting him at odds with the incoming commander-in-chief.

His testimony about the importance of Section 702 of the Foreign Intelligence Surveillance Act (FISA) also could put him at loggerheads with other national security nominees, namely Kash Patel, Trump’s pick to helm the FBI, and Tulsi Gabbard, the choice for director of national intelligence (DNI) — both of whom have disparaged the foreign-spying power in the past.

Appearing before the Senate Intelligence Committee, Ratcliffe described the statute as “an indispensable national security tool. There's no other way to get around that.”

Ratcliffe, who served as the DNI during Trump's first term, noted that “sometimes more than half of the actionable foreign intelligence” provided to the president is derived from FISA.

However, he noted, concerns about the program are valid and intelligence leaders “must do everything we can to make sure that it has the appropriate safeguards, because it can't come at the sacrifice of American’s civil liberties.”

FISA gives spy agencies broad authority to collect communications from U.S. technology firms to hunt for national-security threats living overseas but also scoops up an unknown amount of Americans’ communications without a warrant.

Last year Congress barely managed to reauthorize the program for two more years, overcoming last minute objections by Trump himself, who has claimed, without evidence, that it was used to spy on his 2016 presidential campaign.

Trump signed an extension of Section 702 into law in 2018, but his animosity has remained. Congress set the most recent extension to expire in 2026 to appease his right-wing base and allow him, if elected, to put his own stamp on the law.

Ratcliffe said he has been familiar with 702 throughout his career, first as a U.S. attorney, then as a member of Congress serving on the House Intelligence Committee and finally as DNI.

“The controversy, why some people think that FISA is — no pun intended — a four-letter word is that in the course of doing technical collection on foreign persons … sometimes U.S. persons are incidentally collected,” he said. 

He said he was “impressed” with the CIA’s compliance rate of 99.6 percent on what are known as “U.S. person queries,” where officers search the massive 702 database.

“So you would be supportive of the renewal of 702, and perhaps there are some additional considerations, but at this point, it is critical that we get it renewed?” Sen. Mike Rounds (R-SD) asked.

“It's critical. It's indispensable,” Ratcliffe replied. “And for critics of it, no one has offered a replacement.”

The former spy chief also came out stridently against a warrant requirement to access the 702 repository — a mandate that failed in the House on a tie vote during the last reauthorization battle.

“The danger there is that you really don't have the information to obtain the warrant and the process of obtaining the warrant, we're talking about national security issues where sometimes minutes matter in the ability to disrupt or interdict the bad actors or to act upon the intelligence that you can gain from that,” Ratcliffe said.

In an overt dig at Patel and Gabbard, Sen. John Cornyn (R-TX) suggested Ratcliffe “share your experience and your wisdom with the nominees for FBI and and national director of [intelligence] because we've had these conversations as well, and I think there's some confusion about whether a warrant should be required or not.”

Patel has long derided the tool. Gabbard, who voted against FISA renewal when she served in Congress, publicly reversed her stance on the program last week and said she supports reauthorization — though it’s unclear if the change will be enough to save her endangered nomination.

Ratcliffe, who will likely earn some Democratic support, predicted there would be an “iterative, ongoing discussion” about 702 between now and next year and “it'll be incumbent on me, if confirmed, to both within the administration and outside ... make sure that people understand and to dispel false narratives about how FISA is being misused or can be misused.”

The Intelligence panel is expected to vote on Ratcliffe's nomination next Monday, the day of Trump's inauguration.