Surveillance Flip-Flop Could Sink Tulsi Gabbard’s Nomination

Former Rep. Tulsi Gabbard will walk into the hearing room of the Senate Intelligence Committee Thursday with some things to prove.

The progressive Democrat-turned-Trump-supporter, whom the president nominated to serve as director of national intelligence, will need to explain to senators several controversial parts of her background, such as why she met with now-deposed Syrian dictator Bashar al-Assad.

But another potential flashpoint with some Republican senators is her past stance on Section 702 of the Foreign Intelligence Surveillance Act (FISA). The statute allows federal authorities to collect information on the conversations of foreign nationals without a warrant, but critics have argued it needs reforms because agencies inevitably sweep up the data of Americans who talk to those being surveiled.

Gabbard was one such critic—until her confirmation process. But her past criticisms of the statute, which she will need to use to gather much of the information she will put in the President’s Daily Brief, have reportedly become a hurdle in her private meetings with Republican senators, some of whom have expressed doubt to The Dispatch this week on whether she actually has changed her tune on FISA.

One person she will have to convince is Sen. John Curtis of Utah, who some have speculated could be a swing vote as Donald Trump attempts to push his agenda through the Senate. Though Curtis does not sit on the Senate Intelligence Committee, he told The Dispatch he will still be in the audience, citing gaps in the data he needs to form an opinion of Gabbard, whom he met with earlier this month.

“There’s just enough blanks that I wanted to go to the hearing in person,” he said. “I didn’t want to watch it on TV. I think in person you can pick up nuances and vibe and body language that might be hard to pick up on the TV.”

One such “blank” is her position on Section 702.

When Gabbard represented Hawaii in the House, she repeatedly spoke out against Section 702. In May 2020, she voted against renewing the authority because the reauthorization bill did not have the alterations to the statute she was looking for. “None of the reforms protect the American people from illegal warrantless surveillance. None of the reforms prevent the secret FISA Court from abusing the constitutional rights of Americans. None of the reforms provide real protection against surveillance orders targeted at activities protected under the First Amendment,” she said at the time. Months later, she sponsored a bill to repeal the authority altogether that also would have forced the director of national intelligence and attorney general to destroy any data collected on an American under Section 702, so long as it is not related to an ongoing investigation.

But she changed course on the law after Trump named her as his pick to be director of national intelligence, telling Punchbowl News she will “uphold Americans’ Fourth Amendment rights while maintaining vital national security tools like Section 702.” In her flip, Gabbard cited unspecified recent reforms that Congress had made to the surveillance authority. “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. Significant FISA reforms have been enacted since my time in Congress to address these issues,” she told Punchbowl.

But those comments may not be enough for senators like Curtis, who will eventually vote on her nomination if she makes it past the Intelligence Committee. “I’ve heard what she’s said recently, and I know what she’s done before. I think it’s fair to say that will come up in the hearing. And so, I want to hear her responses in that type of environment,” Curtis said. “I need more data points to really feel like I know where she’s at on it.”

He’s not alone among Republicans.

“There’s still issues about her position on 702, for example, where I believe that her responses to the questions for the record are hedged and unclear what her position is,” Sen. Susan Collins of Maine, who sits on the Intelligence Committee, told reporters, echoing comments she previously gave to The Hill.

Sen. Lindsey Graham of South Carolina said he did not know what Gabbard’s position was on the statue. “That’s why we have the hearing,” he said. Graham had told NBC News’ Meet the Press over the weekend that he was inclined to vote in favor of all the nominees but that he was waiting to watch Gabbard’s hearing. “There are some questions she will be asked that I want to hear the answers to,” he told anchor Kristen Welker.

Other Republicans, however, are sounding more confident in Gabbard’s position on the subject. 

“In my discussions with her, she had earlier been opposed to it,” Sen. Mike Rounds of South Dakota, who sits on the Intelligence Committee, told The Dispatch. “However, she did not know about the modifications that have been made to 702 over the last 10 years and the additional safeguards that have been built in. And now, my understanding in my discussions with her is that she understands how critical it is and that we cannot do a good job of providing intel briefs without the use of 702 provisions.”

Sen. Ted Budd of North Carolina, a new addition to the committee, said Gabbard’s position was clear from both her public statements and the conversations he had in private with her.

“I’ll be asking all about that, and I’ve had those conversations in my office: So far, so good,” he said.

Sen. Markwayne Mullin of Oklahoma, who has long been friendly with Gabbard and is supporting her nomination, encouraged colleagues doubtful of her position to meet with her personally.

“Just talk to her. That’s the biggest thing. Sit down and visit with her and let her answer the questions. Give her an opportunity,” he told The Dispatch. “I get there’s different opinions on stuff, but they have questions about, ‘Why has her position changed?’ People’s positions change with the knowledge they have. I think the more they talk to her, the better they’ll be.”