U.S. President Joe Biden’s administration urged Congress on Tuesday to reauthorize a controversial surveillance program that officials say has become a vital tool of protecting the United States from all manner of threats, from foreign terrorist attacks to Chinese efforts to steal U.S. technology.
The program, established in 2008 under Section 702 of the Foreign Intelligence Surveillance Act (FISA), allows U.S. spy agencies to collect the online communications of foreigners for intelligence purposes but can also result in “incidental collection” of U.S. citizens’ messages.
Although Congress has reauthorized the program twice in the past, the bipartisan support that it once enjoyed has ebbed in recent years, leaving officials worried about the specter of losing a powerful weapon in the national security arsenal.
“What keeps me up at night is thinking about what could happen if we do not renew section 702 of FISA,” said Matt Olsen, assistant attorney general for national security, speaking at the Brookings Institution.
Olsen’s appearance at the influential Washington think tank was part of what he called an “all-out effort” by the Biden administration to ensure Congress reauthorizes the law before it lapses at the end of the year.
In a joint letter to top congressional Republicans and Democrats, Attorney General Merrick Garland and Director of National Intelligence Avril Haines said the surveillance program’s renewal was a “top legislative priority” for the Biden administration.
“Over the last 15 years, Section 702 has proven invaluable again and again in protecting American lives and U.S. national security,” the two officials wrote.
Intelligence information obtained under Section 702 has been used to identify threats from China, Russia, Iran and North Korea, they said, adding that it “contributed” to the success of a drone strike that killed al-Qaida leader Ayman al-Zawahiri last summer.
“It has become clear that there is no way to replicate Section 702’s speed, reliability, specificity, and insight,” Garland and Haines wrote, urging Congress to “promptly reauthorize” the law.
In a statement, national security adviser Jake Sullivan added his voice to the administration’s call.
“This authority is an invaluable tool that continues to protect Americans every day and is crucial to ensuring that U.S. defense, intelligence and law enforcement agencies can respond to threats from the People’s Republic of China, Russia, nefarious cyber actors, terrorists and those who seek to harm our critical infrastructure,” Sullivan said.
Although the law faces a December 31 expiration date, Olsen urged Congress to act as far in advance of the deadline as possible.
Garland is expected to testify before the Senate Judiciary Committee on Wednesday, while Haines will appear before both the Senate and the House intelligence committees next week. Both officials will likely face tough questions from lawmakers about the surveillance program.
Opposition to the program is even stiffer in the House where newly empowered Republicans, upset over the wiretapping of a Trump campaign aide in 2016 and other alleged abuses, have formed a “select subcommittee on the weaponization of the federal government” against conservatives.
Congressional Republicans opposed to renewing the program have found an improbable group of allies: civil liberties and privacy rights advocates.
Among the program’s most vociferous critics is the American Civil Liberties Union.
Patrick Toomey, deputy project director of the ACLU’s National Security Project, said the program has become a “spying tool” for the FBI.
“The government claims to be targeting people overseas, but it’s clearer than ever that agents are using this surveillance as a backdoor into Americans’ private emails and messages,” Toomey said in a statement to VOA.
In what the ACLU and other critics deride as a “backdoor search loophole,” FBI analysts are allowed to search the data collected through the program by running queries using Americans’ personally identifying information.
“The FBI is amassing huge quantities of protected communications and then searching through them millions of times each year without a warrant,” Toomey said.
Olsen acknowledged past “mistakes” and “improper conduct” on the part of FBI analysts but said the Justice Department instituted a series of changes designed to address concerns about the program.
In their letter, Garland and Haines noted that the surveillance authority under Section 702 “may not be directed against Americans at home or abroad, or any person regardless of nationality, known to be located in the United States.”
But Toomey said the Biden administration is seeking reauthorization of the program “without significant reforms that will protect Americans.”
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