WASHINGTON – Biden administration officials urged Congress on Tuesday to renew a surveillance program the government has long seen as vital in protecting national security but whose future is uncertain because of scrutiny from an unusual alignment of civil liberties advocates and some Republicans.
The program, which is under the Foreign Intelligence Surveillance Act, or FISA, grants American spy agencies sweeping powers to surveil and examine communications of foreigners located outside the United States. It's set to expire at year's end unless Congress agrees to renew it.
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Officials in the Democratic administration, bracing for a contentious debate on Capitol Hill about reauthorizing the program, sought on Tuesday to make a public case about the value of the statutory authorities that are at risk of expiring. They asserted that the program in recent years has yielded valuable insight into ransomware attacks on critical infrastructure, helped disrupt potential acts of terror and efforts to recruit spies, and contributed to the killing of al-Qaida leader Ayman al-Zawahri in a drone strike last August.
At issue is a provision of FISA known as Section 702, which allows spy agencies to collect huge swaths of foreign communications without a warrant. But that tool has drawn scrutiny from civil liberties advocates because it results in the incidental collection from Americans when those Americans are in contact with the foreign surveillance targets.
“As of today, I don't accept the claim that Americans' privacy is adequately protected under the current 702 program,” said Sen. Ron Wyden, D-Ore., a longtime Senate Intelligence Committee member who has long pressed U.S. spy agencies on their compliance with civil liberties.
Wyden said he had already spoken to administration officials about disclosing how often officials search “incidental collection” for information about Americans. The intelligence agencies issue an annual “transparency report” but have not published a precise number of U.S. searches.
“This is representative of one of the most important challenges of our time, particularly for policymakers, which is to demonstrate that security and liberty are not mutually exclusive,” Wyden said in an interview.
Section 702 was first added to FISA in 2008 and was renewed for six years in 2018, when then-President Donald Trump, who routinely lambasted government intelligence agencies, originally tweeted opposition to the program but then reversed himself.
This year's fight for renewal is again unfolding in a polarized political climate. Republicans still angry over FBI errors during the investigation into links between Russia and Trump's 2016 Republican presidential campaign say they're skeptical of the government's need for broad spy powers and maintain the authorities are ripe for abuse and overreach.
But the flaws during the Russia probe, which involved warrants to a secretive surveillance court to monitor the communication of a former Trump campaign aide, are different from the Section 702 authorities, which allow for communications to be collected without a warrant.
Even so, the new Republican majority in the U.S. House has already formed a panel on the “weaponization" of the federal government, aligning with progressive Democrats who have pushed for more curbs on warrantless surveillance.
Rep. Chris Stewart, R-Utah, said he believed Congress would ultimately reauthorize the program but that getting Republican support “is going to be harder than it's ever been.”
“The importance of it is such that we can't fail,” said Stewart, a House Intelligence Committee member. “But it's going to be very difficult.”
As part of an effort to persuade Congress to renew the program, and to assuage potential privacy concerns, Biden administration officials held a background briefing for reporters and released a statement from national security adviser Jake Sullivan and a letter to lawmakers from Attorney General Merrick Garland and the national intelligence director, Avril Haines.
Separately, Assistant Attorney General Matthew Olsen, the Justice Department's top national security official, delivered the same message in a speech at the Brookings Institution think tank.
“The bottom line is that Section 702 gives us the intelligence that's necessary for us to stay one step ahead of our adversaries, and we cannot afford to let it lapse,” Olsen said. “So, it is time to sound the alarm. We must act with urgency, and that is why I am here today.”
National security officials say Section 702 makes possible their most critical work, from collecting intelligence on China to stopping ransomware attacks and other cyber intrusions that have disrupted government agencies and a wide range of industries. But they have declined to publicly give specifics of how they use surveillance programs, saying those are classified.
Courts and lawmakers have gotten a more detailed look at the program, but in private. Intelligence leaders have already been speaking to key lawmakers about Section 702 and will give classified and unclassified briefings to Congress later this year.
In their letter to Congress, Garland and Haines note that every court to consider Section 702’s bulk data program “has found it to be constitutional.”
The intelligence community has also never released a precise figure on how many searches are conducted of its bulk data for information on Americans. In its most recent transparency report, the Office of the Director of National Intelligence said the FBI had conducted “fewer than 3,394,053” searches during 2021.
Besides civil liberties concerns, there are also questions about whether power given to U.S. intelligence after the Sept. 11, 2001, terror attacks should be extended as intelligence agencies broadly refocus from counterterrorism to what’s often called “great power competition” — Washington’s rivalries with Beijing and Moscow — and a range of other threats including cyberattacks.