Tulsi Gabbard’s FISA 702 Flip Is a Terrible Sign of What Is to Come

Tulsi Gabbard recent made headlines when she announced a stunning turnabout on FISA Section 702. “Section 702,” she now says, “is crucial for gathering foreign intelligence on non-US persons abroad,” and such a “unique capability cannot be replicated and must be safeguarded to protect our nation while ensuring the civil liberties of Americans.”

The program—which permits the federal government to wiretap Americans without warrants—has long been controversial among libertarians and opponents of the deep state. The topic recently made waves when Congress extended Section 702 in April of 2024. John Ratcliffe, Trump’s selection to head the CIA, has also supported extending the program.

But what’s behind her sudden change of heart? Apparently, Gabbard’s confirmation as the Director of National Intelligence is being held up by several Republican senators who view the program’s preservation as a litmus test. Without the required votes to confirm the appointment, Trump would have to decide whether to attempt to place Gabbard into the position via a recess appointment or choose an alternative nominee.

The Fourth Amendment guarantee of “the people to be secure in their persons, houses, papers, and effects” must not be taken lightly. In fact, one of the controversies that convinced the American colonies to secede from the British crown was violations of warrantless searches and seizures. “Writs of assistance,” as they were known then, allowed British agents to search property without warrants to crack down on smuggling. In the 1761 episode of “Paxton’s case,” patriot firebrand James Otis famously argued that the scheme violated England’s constitutional system. Though his argument failed to sway the court, a young John Adams observed the oratory and later remarked that “then and there the child Independence was born.”

It was no surprise, then, when Congress adopted—and the states ratified—a rigid constitutional amendment to prevent the federal government from searching and seizing the possessions of Americans without probable cause and a warrant. This is the timeless purpose of the Fourth Amendment, one of the most crucial vestiges of privacy rights in our political system.

As we all know, that safeguard has vanished in modern times. Many programs and agencies are responsible, such as COINTELPRO and the NSA, but FISA Section 702 has also opened the doorway to abuses by allowing intelligence services to conduct warrantless surveillance on any American who communicated with a non-US citizen who becomes a target of the program. As Ron Paul noted, FISA Section 702 has become the surveillance state’s “crown jewel.”

So what should be done about Tulsi Gabbard’s prospective confirmation and the immediate situation? The most reasonable response involves blasting FISA Section 702 as a blatantly unconstitutional tool of the federal police state, criticizing Gabbard herself for the policy reversal, blasting the devious Republican senators withholding their support for her, and for GOP leaders and donors to threaten to withhold their own support from them.

If it comes to it, holding a floor vote that rejects Gabbard’s nomination would also be red meat for those wanting to take out the deep state’s favorite Republicans. In addition, Trump could also consider restructuring the intelligence hierarchy to make an unappointed bureaucrat with similar powers, using a recess appointment to place her into the position, and/or leaving the National Director of Intelligence office vacant. Furthermore, the states could revive legislation that threatens to cut water and electricity to the buildings of intelligence agencies that reside within them, such as the plan Maryland entertained in 2014.

None of the above tactics are mutually exclusive, and all benefit opponents of the deep state more than merely withholding criticism from any or all parties involved and hoping for the best. Americans cannot afford to let Trump’s electoral mandate, which included pledges to challenge the state that framed him for treason, to be overcome by feckless senators and Gabbard’s willingness to play the political game and make indefensible sacrifices for power.

Whether one attributes blame to the US security apparatus, the Republican senators in question, or Gabbard herself—the flip on FISA Section 702 is a terrible sign that is likely to have implications for Trump’s other cabinet members and advisors. The threat of establishment Republicans withholding their support to preserve tyrannical programs, power structures, and bureaucratic power is a real threat, and it’s safe to say we haven’t seen the end of it.