Justice Department and intelligence officials face a skeptical Congress as they push to renew a contentious surveillance law, in what could be a drawn-out battle between the Biden administration and lawmakers.
Intelligence community officials have walked a fine line in making their pitch, touting the surveillance power as a cornerstone of national security while seeking to reassure lawmakers that they understand the importance of protecting civil liberties.
But members from both parties say the government has misused the Foreign Intelligence Surveillance Act, and argue that the reauthorization of Section 702 is an opportunity for changes. The provision expires at the end of the year.
Legislative movement now has started. The House Intelligence Committee last month announced the six lawmakers on a bipartisan working group focusing on Section 702’s reauthorization. And a House Judiciary subcommittee will hold a hearing Thursday entitled, “Fixing FISA: How a Law Designed to Protect Americans Has Been Weaponized Against Them.”
The contours of the debate already have emerged over the law, which allows the U.S. government to collect the digital communications of foreigners who are located outside the U.S.
“You can tell your department, not a chance in hell we’re going to be reauthorizing that thing without some major, major reforms,” Republican Sen. Mike Lee of Utah told Attorney General Merrick B. Garland at a Justice Department oversight hearing earlier this year.
Arguments over the surveillance program do not cut along strict partisan lines, unlike many high-profile issues in Congress. Both hardline conservatives and progressive Democrats voted against the Section 702 program’s latest renewal in 2018.
Yet Senate leaders from both parties voted for that renewal, which now-Minority Leader Mitch McConnell, R-Ky., described as “of particular importance as it gives our national security community and warfighters irreplaceable intelligence in waging the war on terror.”
Unparalleled tool
The Justice Department and the intelligence community describe the Section 702 program as an unparalleled tool that’s been used to protect against threats posed by China, Russia and Iran.
The surveillance power has disrupted planned terrorist attacks, identified foreign random software attacks on U.S. infrastructure and contributed to the drone strike that killed Ayman al-Zawahiri last year, Garland and Director of National Intelligence Avril Haines said in a February letter to Congress.
But civil liberty groups have criticized Section 702, slamming it as a mass surveillance law that goes far beyond what’s needed to protect the country’s security. They argue that the law sweeps up communications from U.S. citizens, allowing authorities to run searches for information about Americans.
The delicate road ahead for intelligence officials has been muddied by revelations on FISA in recent years. High-profile scrutiny came after the FBI launched a criminal probe into members of Donald Trump’s presidential campaign in 2016 and possible Russian interference in the election.
A DOJ watchdog found “significant inaccuracies and omissions” in court applications to allow for continued surveillance of former Trump campaign adviser Carter Page, although that was under a different section of the law than Section 702. An audit of 29 other applications found that the FBI was not following procedures from 2001 meant to protect the FISA process from abuse and irregularities.
And a DOJ official has said there have been inadvertent queries of Section 702 databases, but the agency has improved training and changed policies since 2021.
Work ahead
House Intelligence Chairman Michael R. Turner, R-Ohio, confronted national intelligence leaders at a public hearing on worldwide threats last month, telling them their organizations had “degraded the public trust.”
“It is not Congress that has put FISA at risk. It is your organization,” Turner said. “These abuses did not happen somewhere else. They happened underneath the leadership of the individuals that are represented at the table in front of us.” The witnesses included the heads of the Defense Intelligence Agency, the CIA, the FBI, the National Security Agency and the Office of the Director of National Intelligence.
“That may sound harsh, but the first step in earning back this trust is an ability to admit that there is in fact a problem,” he said, adding that FISA needed reforms.
Republican Rep. Darin LaHood of Illinois, a member of the House Intelligence Committee, recently said his name was wrongfully searched in surveillance information. LaHood has been tapped to lead the Section 702 working group and says it will pursue changes and safeguards.
FBI Director Christopher Wray told lawmakers the agency has created a new internal audit office that’s focused on FISA compliance.
“We are absolutely committed to making sure that we show you, the rest of the members of Congress and the American people that we’re worthy of these incredibly valuable authorities,” Wray said at the House hearing on worldwide threats.
Future action
If Congress cuts it close to the end-of-year deadline, it is unlikely to lead to a deal that protects privacy while preserving the need to collect intelligence for national security, said Jamil N. Jaffer, executive director of the National Security Institute at George Mason University’s law school.
“If prior history is any guide, it’s likely that Congress will wait until the very last minute to get this thing over the line and find a way to make a deal,” Jaffer said.
Meanwhile, as the reauthorization plays out, the debate over FISA means lawmakers who usually clash find themselves sharing some criticisms of the 702 program.
For example, Washington Democratic Rep. Pramila Jayapal, chairwoman of the Congressional Progressive Caucus, has said changes must be made before reauthorization.
And hardline Republican Rep. Andy Biggs of Arizona filed a bill that would repeal FISA. Biggs has accused the FBI and federal intelligence agencies of using scare tactics to convince congressional lawmakers that the surveillance powers are the only way to safeguard the nation.
“How much longer must we watch the FBI brazenly spy on Americans before we strip it of its unchecked authority?” he said in a press release.
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