Caleb Brown: This is the Cato Daily Podcast for Tuesday, June 13, 2017. I am Caleb Brown. It wasn’t just infrastructure week that was sidelined by the current political intrigue. Last week’s hearings on warrantless surveillance of Americans also had to take a backseat. Democratic Representative Tulsi Gabbard of Hawaii believes that is a shame, the rights of Americans are implicated by warrantless surveillance and protecting those rights is a core function of Congress. I spoke with Gabbard about the surveillance authorized by Section 702 of the FISA Amendments Act and other topics yesterday.

Tulsi Gabbard: There’s a lot that is included within Section 702, but I think what has brought so much concern from people like myself as well as colleagues from both sides of the aisle and people at home is Section 702 has allowed for massive government-led exploitation of personal privacy, allowing them to collect online communications and, specifically, emails for everyday Americans. And this has been the most concerning element of it.

Caleb Brown: Now, I looked at a fact sheet presented by the Permanent Select Committee in the House and they have some, I think, carefully chosen words related to Section 702. They say that bulk collection authorized by Section 702 cannot be used to target – and I think that is a very important word, target – Americans. Is that true?

Tulsi Gabbard: Again, those carefully chosen words are used intentionally. And you know, there are loopholes and workarounds that should be concerning. And basically, what Section 702, and actually the NSA recently made an announcement of a practice that they would stop, which was that they would stop collecting internet communications that merely mention a foreign intelligence target under Section 702, which is what they call about communications. But what those about communications would have allowed, or did allow, them to do is to sweep up emails that I may have sent, or you may have sent, or anyone would have sent with mere mention of someone who they quote unquote are targeting.

Caleb Brown: So, the House Select Committee makes this, draws this distinction out even further and they said that Section 702 would allow the Feds to obtain emails or communications of foreigners in foreign countries who are maybe plotting harm to the United States, but it does not allow for Americans to be targeted. So, again, if you’re saying the NSA has decided, or announced, rather, that it is not going to be collecting some communications which may be between one American and another American, all on American soil, what would prevent them from changing that policy back without fanfare?

Tulsi Gabbard: That is my concern. Simply because the NSA has announced that they would stop this practice of collecting these sweeping emails of Americans who may or may not be a target, but may merely happen to mention the name of someone that the NSA is targeting, that policy could very easily be switched back today, tomorrow, in a year, ten years, or twenty years. And that is where legislation that I have introduced specifically would prohibit that policy change from happening again by codifying that change and saying that no, you will not be able to collect Americans’ emails through this quote unquote about collection that they have been doing.

Caleb Brown: And with federal agencies in general, at any time a policy can be announced, or we’re going to interpret a statute in such a way that we will now behave this way. Those aren’t statutory changes, those are just policy changes, and they can change with the change of administration, as we’ve seen with the Trump administration, and the Department of Justice, and various other departments, those are much less serious reforms than a statutory change.

Tulsi Gabbard: That’s right. You know, I don’t know that you can even call it a reform by someone merely making an announcement that they are going to change a practice does not prohibit any future, as you said, administration or administrator from making another policy change in the future. And with something like this, this isn’t a minor tweak. This is something that would either allow or disallow our government agencies, the NSA specifically, to be able to collect Americans’ emails, and that is something that, at our core, with the Fourth Amendment and our Constitution, should not be allowed to happen.

Caleb Brown: So what are the must have reforms in a Section 702 reauthorization?

Tulsi Gabbard: There are a number of them that I know the Judiciary Committee is looking at. I don’t sit on that committee but I am working closely with my colleagues who are very much a part of this, but a core component is what I introduce my legislation on. The, let me see where it is here, what I call the Puka Act. And I call it the Puka Act – puka is something in Hawaii that is slang for a hole. This is a gaping hole in our policy. And, specifically, it would state in statute that the NSA would no longer be able to collect these about communications, plain and simple.

Caleb Brown: Changing gears just a little bit, is it your sense that Democrats broadly don’t want to talk about foreign policy? I mean you, obviously, are not afraid of it, but is that a sense that you have?

Tulsi Gabbard: You know the sense that I have is that unfortunately we see throughout the changes of political winds, the changes of administrations, both Democrats and Republicans become more selective of what kinds of foreign policy they talk about and how critical, how willing they are to be critical of those foreign policies. If someone from their team is in the White House, they are not going to criticize certain things. They are not going to criticize certain troop deployments or certain actions related to foreign policy. But if it is a member of the other team, the other political party in the White House, then they start raising all kind of hay, on the very same thing that they refused to be vocal or critical on before. And I think as a veteran, as a soldier, this is a disservice to our country. It is a disservice to the American people who expect that we, no matter what kind of elected official you are, we are in this job to serve all Americans, to serve all of our constituents. And we shouldn’t be putting those partisan politics before that service.

Caleb Brown: The following issue is not on the table, but it has always been my understanding that part of the deal with compromise in Congress is that in exchange for some increase in military spending, Republicans are willing to give some more social spending, some more social insurance spending. And that has always been what compromise has looked like. If it were on the table, and of course President Trump doesn’t seem interested in reducing military spending, if a reduction in military spending, a reshuffling of some of the priorities that we have, put our military toward into something that was more explicitly focused on defense. Would Democrats broadly be willing to give up some of that other spending in order to get reductions in military spending, that is, a compromise in the opposite direction?

Tulsi Gabbard: Look, I don’t presume to speak for all Democrats, certainly not in the House of Representatives…

Caleb Brown: Well then what about you?

Tulsi Gabbard: I think we’ve got to look at this in a responsible way across the board and I think it’s somewhat irresponsible to kind of paint this with a broad brush saying well I’m going to reduce defense spending if you give me some of this spending. I think across the board, yes, in the Department of Defense as well as in some of our other federal agencies there are programs that can and should probably be cut. There’s fat that can and should be trimmed. And there are other programs that may be very effective and may be accomplishing a positive purpose that perhaps need to be expanded. So, I think having that hard look, the DOD in particular has not been audited, and I have been a vocal proponent for that audit to occur, because too often we hear about billions and billions of dollars, if not trillions of dollars sometimes being spent without being accounted for. So that’s the kind of hard work and close eye we need to take across the federal budget, including the Department of Defense.

Caleb Brown: Is an audit of the Pentagon on the table anywhere?

Tulsi Gabbard: I have supported legislation and language to put forward an audit. The Pentagon actually has a deadline, we will see if they’ll meet it, to conduct an audit. Leaders within the Pentagon have been somewhat plainspoken about how hard an audit is, but it is our job in Congress as the oversight entity for the Executive Branch to make sure that they fulfill that obligation and we are continuing to push them to do so.

Caleb Brown: What are your general impressions of the Saudi arms deal that President Trump announced a few weeks ago?

Tulsi Gabbard: Generally, I was very strongly opposed to it. I remain strongly opposed to it for a number of reasons. To make an arms deal with a country that has been the number one exporter of Wahhabi Salafi extremist ideology, that is the ideology that is fueling terrorist groups like ISIS and Al-Qaeda, is counterproductive to the interests of our country and, frankly, to humanity in the world, where you have these terrorist groups conducting these attacks. To have an arms deal with a country that is inserting itself into this civil war in Yemen and having these attacks on civilians in a war that Congress has not authorized the American government to be involved with is not something that we should be doing. What to speak of the lack of reflection of any kind of democratic principles within the Saudi society, I mean there is a whole list of reasons. The first one being, I think, the most important and the most relevant to the challenges that we are facing today and the threats that we continue to face from these terrorist groups who attacked us on 9–11.

Caleb Brown: Why do you think Saudi Arabia and other Gulf states have cut ties with Qatar?

Tulsi Gabbard: Their reasons for saying so have been made publicly. I think that there is a longstanding history of divisiveness between the two countries. I think it is ironic to hear Saudi Arabia calling out Qatar for supporting terrorists when Saudi Arabia has been doing the very same thing. So if we are going to hold people to a certain standard, that should be applied across the board.

Caleb Brown: Going back to surveillance for a moment here, do you think that this Russiagate scandal, in its various dimensions, has helped sensitize any of your colleagues in the House about the potential mismanagement of surveillance programs?

Tulsi Gabbard: Sadly, no. I think if you look at the entire situation with Russia it has become a largely politicized one, again, where partisan lines have been drawn. For example, the Privacy and Civil Liberties Oversight Board. It is the oversight board that exists that is supposed to provide accountability on behalf of the American people to make sure that various government agencies don’t abuse certain provisions that were passed in the Patriot Act, as, unfortunately, we have seen in certain circumstances. Congress is not paying attention to the fact, nor is the administration, for that matter, to the fact that this oversight board has one member on it. It cannot function with one member. There should be five appointed members. I introduced legislation to strengthen the authorities for this oversight board, but we can’t even talk about strengthening those authorities when it is dysfunctional, with one guy talking to himself.

Caleb Brown: And, in fact, just last week when several members of the Trump administration were supposed to be talking about surveillance authorities they ended up talking about James Comey, and they ended up talking about this Russia issue.

Tulsi Gabbard: And that’s the problem here, is there is so much noise and there are so many distractions that the very real challenges that we are facing, many of them have been longstanding, often get thrown to the wayside because of the shiny thing that is catching people’s attention on that day.

Caleb Brown: What are the stakes, though, of not getting this investigation of potential Russian interference in the U.S. election? What are the stakes of not getting that right and not understanding what the lessons is, particularly in the next few years?

Tulsi Gabbard: I think it comes down to the American people’s ability to trust and have faith in our government and in our democracy. Ensuring that these investigations that are occurring, both the ones in Congress as well as the independent counsel that has been appointed, the credibility has to be there, and the transparency must be there for the American people to be able to have faith in the outcome of these investigations, whatever that may be.

Caleb Brown: How much faith do you have in the likely outcome of either congressional investigation or the special counsel?

Tulsi Gabbard: It remains to be seen. I think the special counsel Mueller, that was an important and good step that that occurred. I know that he is still building his team, but if that continues down the path as we expect, that should provide a positive outcome in the sense of a credible outcome. And I think the Senate Intelligence Committee, more so than the House, has been able to remain very bipartisan in their investigation and in the questions that they have been able to ask and if they remain down that path then I think also we will have a credible outcome.

Caleb Brown: Tulsi Gabbard is a Democratic U.S. Representative from Hawaii. Subscribe to and rate the Cato Daily Podcast at iTunes and Google Play, and follow us on Twitter, @CatoPodcast.