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US launches push to renew key foreign surveillance tool

DOJ officials acknowledge past criticism of FISA use as they underscore its importance to national security efforts

Attorney General Merrick Garland arrives for President Joe Biden’s State of the Union address in February.
Attorney General Merrick Garland arrives for President Joe Biden’s State of the Union address in February. (Tom Williams/CQ Roll Call)

The Biden administration on Tuesday called on Congress to reauthorize a key surveillance law before it expires at the end of the year, touting it as a cornerstone of national security even as officials work to address past criticisms that it has information on Americans as well.

Attorney General Merrick B. Garland and Director of National Intelligence Avril Haines sent a letter to congressional leaders on Tuesday to emphasize that there is no way to replicate Section 702 of the Foreign Intelligence Surveillance Act for its insights.

The section allows the federal government to collect the digital communications of foreigners who are located outside the U.S. But the provision has faced criticism that it’s a mass surveillance law that goes far beyond what’s necessary to safeguard national security and can be used to target Americans.

“The comprehensive system Congress designed to ensure this irreplaceable intelligence tool protects the privacy and civil liberties of U.S. persons has worked,” the Garland-Haines letter states. “When incidents of noncompliance have been identified, remedial steps have been taken to ensure the authority is being implemented consistent with its limited scope.”

National Security Advisor Jake Sullivan released a statement Tuesday that called Section 702 reauthorization a “top priority,” and Assistant Attorney General Matthew Olsen made the case at a Brookings Institution event.

“If Congress doesn’t act to reauthorize it, and if 702 expires or is watered down, the United States will lose absolutely critical insights that we need to protect the country,” Olsen said.

The push from the Biden administration comes the day before Garland is set to testify at a Senate Judiciary Committee oversight hearing of the Justice Department.

Former President Donald Trump signed into law the program’s latest renewal in 2018, but dozens of Republicans and Democrats voted against that year’s reauthorization legislation.

Washington Democratic Rep. Pramila Jayapal, chairwoman of the Congressional Progressive Caucus, has said changes must be made before reauthorization, and Arizona Republican Rep. Andy Biggs filed a bill that would repeal the law.

“The FBI and federal intelligence agencies use scare tactics to convince Congress that these unchecked powers are the only method available to protect our nation from harm,” Biggs said in a statement earlier this month. “Well, every American should be scared to know federal agents are spying on them, even if they have nothing to hide.”

Ohio Republican Rep. Jim Jordan, who is now chair of the House Judiciary Committee, also voted against the reauthorization.

The ACLU has encouraged Americans to urge members of Congress to vote against a Section 702 reauthorization, saying that it allows “mass surveillance of Americans’ online communications with anyone abroad.”

“Congress can still fight back against these egregious violations of our privacy,” the ACLU wrote. “This is our chance to begin to end this dystopian chapter of American history.”

Capitol assurances

Olsen, in his speech, foreshadowed the ways that the Justice Department will emphasize the need for the tool while also addressing the criticisms.

The FISA process has been in the political spotlight because the FBI launched a criminal probe into members of President Donald Trump’s campaign in 2016. Trump and his congressional allies criticized the FBI probe into Russian interference in the election.

And a DOJ watchdog audit identified “significant concerns” and found the FBI was not following procedures from 2001 meant to protect process from abuse and irregularities.

Olsen said that controversy is about a separate part of FISA, but he doesn’t distinguish between the two parts when making the case for Section 702 this year as something that national security is more important than partisan politics.

“I think it’s incumbent on us with every member of Congress to explain the value of 702 and explain how we’re addressing the concerns that that member of Congress may have,” Olsen said.

Olsen said Tuesday the DOJ has “made mistakes” in recent years that have “undermined that core public trust.” He said the FBI has improved training and changed policies since 2021 that have dramatically decreased the number of queries of U.S. persons and inadvertent queries of Section 702 databases.

“Understanding that context is very important as we look to fix these issues, but at the end of the day, the mistakes are not acceptable,” Olsen said. “They aren’t acceptable to us. They’re not acceptable to Congress. They’re not acceptable to the American people, and they shouldn’t be.”

Olsen said Section 702 is used as the government focuses on serious threats, “such as the Chinese government’s efforts to spy on us and to steal our sensitive technologies, Iran Sanctions evictions, North Korea’s nuclear program, and Russia’s invasion of Ukraine.”

And Olsen said information collected through Section 702 allowed the FBI to disrupt a plot to detonate bombs in the New York City subway system, and also contributed to the 2022 drone strike that killed Ayman al-Zawihiri, the leader of al Qa’ida.

“We’ve used it to identify and disrupt hostile foreign actors’ efforts to recruit spies in this country, or to send operatives into the United States,” Olsen said. “And we’ve relied on 702 to mitigate and prevent foreign ransomware and other cyberattacks on U.S. critical infrastructure.”

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