Senator Mike Lee went off on FBI Director Christopher Wray at a Senate hearing on Tuesday.
The debate between the two got heated when the hearing turned to the issue of the FBI’s non-compliance with court orders regarding the use of 702 FISA surveillance or warrantless searches on Americans. The video and transcript follow below…
SEN. LEE: Don’t worry about it. We’ve got this taken care of. We’ve got new procedures. It’s going to be different now. It’s never different. You haven’t changed and you keep referring to these policies, these new procedures. We haven’t seen that. We’re not even allowed to have access to it. And we have absolutely no reason to trust you because you haven’t behaved in a manner that’s trustworthy.
You can’t, even as we sit here, tell me that people who intentionally, knowingly, deliberately violated the civil rights of American citizens, that they were fired or that they had their security clearance stripped.
Now in 2022, FBI and other agencies searched American’s communications over 200,000 times. Only 16 of which were ‘evidence of a crime only’ searches that returned information. I’d like to ask you to give it a yes or a no answer to these questions. Were the three related batch queries consisting of over 23,000 separate queries relating to the events of January 6th? Were those ‘evidence of a crime only’ queries? Yes or no?
FBI DIRECTOR WRAY: I don’t know the answer to that.
SEN. LEE: The answer is ‘no.’ I do know the answer. The answer is ‘no.’ Were the 141 queries for the activist arrested in connection with the George Floyd protests here in Washington D.C. ‘evidence of a crime only’ queries.
FBI DIRECTOR WRAY: Those were non-compliant queries. And again, they all predate the reforms that we’ve put in place…
SEN. LEE: …which echo other reforms that other FBI directors have told me about every darn year, if I may. In 19,000 donors to a political campaign, the answer there is ‘no.’ What about the query for a sitting member of Congress? The answer there is ‘no.’ What about the query involving you, US Senator, which for all we know could be any one of us. The answer is ‘no.’
And so what does that tell me? Well, what I’m hearing and what these data points all point to is that a warrant requirement or prohibition relating to evidence of a crime only queries would not have been something that would’ve prevented any of the most egregious examples of the abuse that we’ve seen under section 702. So the FBI is already required to obtain a court order in some circumstances before accessing the contents of American’s communications in the context of 702. They’re already required for that in some circumstances.
Since 2018, how many times has that requirement been triggered according to government reporting? Do you know?
FBI DIRECTOR WRAY: You’re talking about the so-called F2? Yes. How many times has it been triggered? Yes. I think there’ve been two instances where I think is maybe the number…
SEN. LEE: …103. 103 times it’s been triggered. And out of those 103 identified times, the FBI should have obtained a court order. How many times did the FBI actually obtain one? Do you know?
FBI DIRECTOR WRAY: That? I think the answer is none.
SEN. LEE: Zero. So you’re telling me that the FBI has completely ignored the limited court order requirement that it’s already subjected. You have the audacity to come here and you told us that adding a warrant requirement to 702, even for queries involving US persons on US soil, that that would amount to some sort of unilateral disarmament.
That — you have a lot of gall, sir, this is disgraceful. The Fourth Amendment requires more than that. And you know it.
I know every single time, for centuries, even prior to the founding of this country, there were similar protections built into the laws of the United Kingdom before we became a country. Even then, the government was making the same darn argument you’re making today, which is, it’s too hard. This would make it hard for the government.
It’s why we have a Constitution, sir. And you must comply with it.
FBI DIRECTOR WRAY: Mr. Chairman, may I respond briefly? When you ask why are things different this time, I would point you again to the findings of the court and the department themselves, both of which have not been shy about identifying some of the same instances that you cited in our colloquy. They themselves have observed the effectiveness of the reform, which is why the pre- versus post- date of the reforms becomes very significant. So that’s number one.
Second. Second, as to your claims about constitutionality, I would point you back to what the case law actually shows on this subject, which is that no court has found 702 in its current form to be unconstitutional. And every court to have looked at it has found it to be constitutional. And last point…
SEN. LEE: How lucky for you, because no one has standing to do that. No one knows when they’re being surveilled. That is not an argument, sir.
FBI DIRECTOR WRAY: Last point, Mr. Chairman, is that in some of the instances, and you went through a number in your questions and some of the instances in particular that I know about, those are instances where the queries were run in order to get to a public official member of Congress to warn them about foreign influences targeting them. And a warrant would not have enabled that.
SEN. LEE: We call those consent searches and consent searches do not require a warrant, sir. And you know that there is nothing that you have done that is not entirely within the
FBI’s control and supervision. You’re asking me to believe something that is not believable because your agency has made it unbelievable and I refuse to accept it.
On X, @BasedMikeLee, Senator Lee’s account, punctuated another exchange.
The Fourth Amendment isn’t optional.
FBI Director Christopher Wray apparently thinks it is.
My copy of the Fourth Amendment doesn’t contain an exception for warrantless, “backdoor” searches of American citizens. https://t.co/PmepcWdCgy
— Mike Lee (@BasedMikeLee) December 5, 2023
“The Fourth Amendment isn’t optional,” he said. “FBI Director Christopher Wray apparently thinks it is. My copy of the Fourth Amendment doesn’t contain an exception for warrantless, ‘backdoor’ searches of American citizens.”
As Senator Lee’s exchange with FBI Director Wray shows, the Federal Bureau of Investigation has zero respect for Americans’ rights. That’s why it should get zero funding from U.S. taxpayers and there is not much need to keep dragging out the FBI Director to get the same old song and dance about a law enforcement bureau that is corrupt and beyond reform.