Senators on Thursday probed former Rep. Tulsi Gabbard, President Donald Trump’s nominee to become the nation’s chief intelligence official, on a controversial surveillance program that critics contend puts marginalized communities at disproportionate risk.  

The Democrat-turned-Republican and Trump supporter has shifted her stances on a variety of topics, including Section 702 of the Foreign Intelligence Service Act (FISA), which has been criticized by progressives and conservative libertarians alike. 

As director of national intelligence, Gabbard would have broad jurisdiction to coordinate surveillance programs that advocates say could be used to target marginalized communities, mass protest movements and Trump’s political enemies. 

“Historically, these surveillance programs get misused against marginalized groups,” said Kia Hamadanchy, a senior policy counsel at the American Civil Liberties Union. “I think that’s something we’ve seen in the operations of these programs over the years.” 

It’s been very routine for the FBI to use 702 “in all sorts of investigations, which has led to it being used in improper ways,” he added.

Section 702 allows for wide-ranging warrantless government surveillance. The program is, in theory, supposed to be used only to gather intelligence on foreign nationals suspected of being connected to terrorist activity. Proponents of the program argue it’s critical for protecting national security, citing its role in helping intelligence officials thwart planned terrorist attacks.

But it has also been abused over the years. An opinion from the Foreign Intelligence Surveillance Court (FISC) and released by the office of the Director of National Intelligence (ODNI) found the FBI misused the vast database of communications collected under Section 702 to search for information on whether those arrested in Black Lives Matter protests had ties to suspected terrorists. Agents also improperly used the database to search for information on suspects in the January 6, 2021, attack at the Capitol, as well as 19,000 donors to a congressional campaign, the court found. 

As a Democratic member of the House representing Hawaii’s 2nd District, Gabbard was a longtime critic of Section 702 and introduced legislation to repeal it. 

But ahead of her confirmation hearing in front of the Senate intelligence committee, Gabbard reversed her previous anti-702 position, telling Punchbowl News: “I will uphold Americans’ Fourth Amendment rights while maintaining vital national security tools like Section 702 to ensure the safety and freedom of the American people.” 

Some privacy advocates and lawmakers on both sides of the issue remained skeptical by Gabbard’s about-face, and the subject became a major focus of her hearing. 

“I think I don’t find your change of heart credible,” said Democratic Sen. Mark Warner of Virginia, the panel’s vice chair. “Because the world today is more complex and more dangerous than ever before, and we need serious people with sufficient experience to be able to navigate that complexity.” 

“It’s really funny what people will do to try to be able to grab the brass ring and have some power, right? That’s really my observation here,” said Patrick G. Eddington, a senior fellow in homeland security and civil liberties at the libertarian-leaning Cato Institute.  

“I think it’s very difficult not to read that change of viewpoint as being extremely politically motivated,” Eddington added. 

In an at-times contentious hearing, senators from both political parties intensely questioned Gabbard on her qualifications and her views on a wide variety of topics. They included her past expressions of sympathy for Edward Snowden, who is responsible for one of the largest intelligence leaks in U.S. history; her controversial January 2017 trip to Syria and Lebanon, during which she met with the now-deposed Syrian dictator Bashar al-Assad; and her past comments appearing to blame NATO for Russia’s invasion of Ukraine. Many senators were not satisfied with her answers.  

“We’re the Senate. We get to decide whether we’re going to confirm this nominee. Obviously, we didn’t select this nominee,” said an exasperated Sen. Michael Bennet of Colorado. “But can’t we do better than somebody who doesn’t believe in 702, somebody who can’t answer whether Snowden was a traitor five times today, who made excuses for Vladimir Putin’s invasion of Ukraine? The first time that I’m aware of any American official has done that. I’m questioning her judgment. That’s the issue that’s at stake here.” 

Before the hearings, Eddington was also concerned about Kash Patel, Trump’s pick to lead the FBI, whose intelligence activities are overseen by the director of national intelligence and whose confirmation hearing was also held on Thursday.

“There are a lot of tools that would be available to whoever Trump’s FBI director winds up being to target his political opponents if that’s really what he wants to do,” he said.

At the hearing, Gabbard said Section 702 was “essential” for national security along with “safeguards” protecting Americans’ Fourth Amendment rights against unreasonable search and seizure. She said subsequent reforms passed by Congress addressed many of her concerns about the program. 

“Some of those reforms that you enacted were specific to some of the legislation that I introduced back when I was in Congress, such as prohibiting the ‘abouts’ collection as well,” Gabbard said, a broad-ranging form of intelligence collection.  

But she appeared to give differing answers as to whether she supports a warrant requirement for 702 queries that involve U.S. citizens. When questioned by Democratic Sen. Ron Wyden of Oregon, a longtime privacy advocate and 702 critic, Gabbard reaffirmed the written responses she provided to the committee in which she said she supported such a requirement except in “exigent circumstances.”

But in response to a question from Sen. John Cornyn, Gabbard said she was aware that FISC has overwhelmingly held that a warrant is not required for 702 searches. She declined to answer when pressed by the Texas Republican about whether she disagrees with those rulings and said throughout the hearing that a warrant requirement would be up to Congress to decide.  

“The decision about a warrant requirement will be yours to make, not mine as director of national intelligence,” Gabbard told GOP Sen. Mike Rounds of South Dakota. 

Gabbard’s answers on the matter did not appear to satisfy Warner’s concerns about her support for the program. 

“On 702, I’m candidly confused,” he told Gabbard toward the end of the hearing. 

Both former DNI John Ratcliffe, Trump’s nominee for CIA director, and Patel indicated in their hearings that they believed a warrant requirement would be impractical and unworkable. The contrast between Patel and Gabbard’s answers stuck out to analysts, especially in light of a recent ruling from Judge LaShann DeArcy Hall in the U.S. District Court for the Eastern District of New York that warrantless “backdoor” 702 searches violate the Fourth Amendment. 

“I doubt seriously that Patel would’ve made the statement unless the response was worked out with White House officials in advance of his confirmation hearing,” Eddington wrote Thursday. “If that’s the case, it’s only a matter of time before the administration appeals Judge Hall’s decision, ensuring the legal and political fight over the FISA Section 702 program will play out during 2025.”

As the principal intelligence adviser to the president, a central part of the job of the DNI is to coordinate relevant information from the FBI director and the other leaders in the intelligence community and decide what makes it to the Oval Office.

Gabbard previously deployed to Iraq as a member of the Hawaii Army National Guard and 

later joined the U.S. Army Reserve, where she attained the rank of lieutenant colonel. Senators from both parties commended Gabbard’s military service but questioned her judgment.  

“As is the case with so many of Trump’s nominees, as a general rule, they simply don’t have the qualifications for the job,” Eddington said. “She has no prior intelligence community experience. And the reason that concerns me is that the people in the bureaucracy who are still going to be there and who are very much in the status quo…if she were to get confirmed, they would run rings around her.”