Deputy Director's Opening Statement to the Senate Judiciary Committee
Remarks as prepared.
Thank you, Chairman Durbin, Ranking Member Graham, and members of the Committee.
It is a privilege to be here because of the immense importance of this topic and the discussion to follow, and for the opportunity to have it in this public setting.
As this distinguished panel of colleagues has already done a thorough job of covering so much of what is vitally important about the collective FISA Section 702 authority.
I will try to provide insight into the FBI’s use of the tool, how we act based on the critical intelligence gleaned from it, and the actions we have taken, and continue to take, to ensure strict compliance with its use.
With respect to the threats we face, as you are all aware, Section 702 is invaluable within our cyber program as it counters malicious activity from adversaries such as China, Russia, Iran, and North Korea, among others.
It is also a critical authority for the counterintelligence program, which relies on it to thwart the work of hostile foreign intelligence services, including each of the lawless, authoritarian regimes just mentioned.
And our counterterrorism operators depend on it to stop foreign terrorists - those who detest American values, freedom, and our way of life – and who seek to attack our country, take lives, and cause harm.
As we’ve learned from the past, if the 702 tool is lost, and we have to rely on “traditional” FISA moving forward, it would be next to impossible to keep pace with the foreign threats we face today.
With that, we know, many very real and legitimate concerns have been raised about the Bureau’s use of 702, particularly as it relates to querying the limited subset of 702 data relating to the FBI’s national security investigations.
I want to be clear about my own views on the compliance incidents that were cited in the FISA Court’s opinion from last year, which was just recently declassified. They are wholly and completely unacceptable, and they do not reflect the high standards that we seek to hold ourselves to in the FBI. I know Director Wray and the entire leadership team feel the same way.
It is important to keep in mind that all the incidents cited in that 2022 FISA Court opinion, pre-dated a set of major reforms that the FBI instituted in 2021 and 2022 that were designed to address the root causes and eliminate incidents like these—from changes to our IT systems, to our internal approval processes, to training, and to accountability.
These reforms have already had significant positive impacts.
We’ve seen a 94 percent drop in U.S. person queries overall, and our Office of Internal Auditing found a 14-percentage point increase in our compliance rate from before the reforms to after. It is now at approximately 96%.
What is vital to remember, is that there are incredibly important national security and public safety reasons for the FBI to query U.S. persons in FISA holdings. This was a fundamental lesson derived by both the 9/11 Commission and the Fort Hood Commission—following two of the deadliest terrorist attacks in United States history.
We must share information across the intelligence community so that we can connect the dots, and then we must be able to find the relevant pieces of information in our databases in time to be able to take action to neutralize the threat.
U.S. person queries are used to identify those who are actively working with foreign terrorist organizations or hostile intelligence services with intent to harm U.S. national security and threaten the lives of those who we serve.
And we also use these queries to determine if those U.S. persons are current or potential victims targeted by these foreign powers.
And, if they are victims, we use U.S. person queries to investigate the extent of that targeting and can use that information to protect and warn the U.S. person or organization.
But it’s not enough to say that queries like these are valuable to our mission to protect the homeland. The American people and Congress also need to have trust and confidence that these queries are being done lawfully and in a fully compliant manner – it is our obligation to rebuild and earn that trust.
As the FBI official responsible for personally approving some of the most sensitive queries, I take these compliance errors very seriously and find them entirely unacceptable. It is difficult to express strongly enough in words how disappointed I am with these failures.
And so in response to these and other incidents, I am announcing today two additional new measures we will be taking to hold personnel accountable for FISA-related compliance incidents.
First – I have issued new “accountability procedures,” which establish a “three strike” policy for query compliance incidents deemed to be unintentional, with a range of rapidly escalating consequences, and even stronger disciplinary action for those incidents deemed deliberate, reckless, or particularly egregious. Penalties, based on the facts, range up to dismissal from the agency.
Second – the FBI has developed a new “Business Health Measure” to hold our leadership - Special Agents In Charge and Assistant Directors In Charge - accountable for monitoring FISA compliance within their field offices and divisions.
This is one of the measures our leaders will be evaluated on when it comes time for performance ratings, awards, and promotions. Because it is not enough to simply hold line-level employees accountable—we strive to ensure that we have accountability at every level of the organization.
You have an absolute and complete commitment from Director Wray and I that we will continue this progress and work within the bounds of legislated authority…
Because as crucial as 702 authority is now, it will only become more important over the next five years.
As foreign cyberattacks continue to escalate in sophistication and frequency.
As foreign terrorist organizations continue to reconstitute and pose resurgent threats to the Homeland.
And as we venture further into an era of heightened global strategic competition.
So thank you again for inviting us to this important hearing, and for your continued support of the FBI and our close partners represented here.