With just a month and a half left in the year, President Joe Biden’s administration is running out of time to re-authorize a spy program it considers vital to preventing terrorism, catching spies and thwarting cyberattacks.
The tool, Section 702 of the Foreign Intelligence Surveillance Act, will expire at the end of December unless the White House and Congress can reach an agreement and resolve a debate that has given rise to unlikely alliances at the intersection of privacy and national security.
Without the program, officials warn, the government will be unable to collect crucial intelligence abroad. But civil liberties advocates across the political spectrum say the law as it stands violates citizens’ privacy and insist changes are needed before the program is reauthorized.
“Imagine if some foreign terrorist organization changes its intentions and orders an agent to carry out an attack in our own backyard, and imagine that we are not able to thwart the threat because the FBI’s 702 clearances have been so watered down,” the director said. of FBI, Christopher Wray, to lawmakers at the House National Security Council on Wednesday.
The law, enacted in 2008, allows the US intelligence community to collect without a court order the communications of foreigners outside the country suspected of posing a threat to national security. It is important to note that the government also captures the communications of U.S. citizens and other people in the United States when they come into contact with those targeted foreigners.
In arguing for renewal of the law, the Biden administration over the past year has cited numerous cases in which intelligence derived from Section 702 has helped thwart an attack, including an assassination plot on U.S. soil, or contributed to a successful operation, like the attack last year that killed Ayman al-Zawahri, the leader of Al Qaeda.
National security officials have also said that 59% of the articles in the president’s daily briefing contain Section 702 information, pointing to the need for the program at a time when Israel’s war with Hamas has raised concerns. about attacks inside the United States.
But while both sides of the debate broadly agree that the program is valuable, they differ on key issues over how it should be structured, creating an impasse as the deadline approaches and as Congress is consumed by a busy agenda. end of the year, which includes working to avoid a government shutdown and disputes over border security and war spending. The White House has already ruled out the only known legislative proposal that has been presented as unworkable.
Another complicating factor: The coalition of lawmakers skeptical of government surveillance includes both liberal Democrats concerned about privacy and Republicans who strongly support former President Donald Trump and still view the intelligence community with suspicion for its investigation into ties between Russia and Trump’s 2016 campaign.
Despite the clear challenges to reaching an agreement, a last-minute fight between the White House and Congress every time the government’s surveillance powers are up for renewal has become predictable. This particular program was last renewed in January 2018 after a split vote in Congress and was signed into law by Trump, who in a statement praised the value of the tool for having “saved lives” but also applauded a new requirement which was intended to protect privacy.
“Many of these in the past have come to the brink. “There is a history here of subtle maneuvering as these laws come to the brink of expiration,” said Jamil Jaffer, founder and executive director of the National Security Institute at George Mason University School of Law and a senior Justice Department official when the created the law.
This year, a key point of contention is the insistence by some in Congress — despite strong objection from the White House — that federal agencies be required to obtain a court order before they can access people’s communications. in United States.
That has been a priority for civil liberties advocates in light of revelations last year about improper intelligence database searches by FBI analysts for information related to the January 6, 2021, riot in the Capitol and the 2020 racial justice protests, as well as on state and federal political figures.
The Biden administration has said that compliance errors by the FBI are extremely rare given the huge number of general database queries and that the FBI has made important reforms to minimize the potential for civil liberties intrusions.
A senior administration official has said the warrant requirement included in a legislative proposal announced last week would cross a “red line” for the White House, since it would limit officials’ ability to detect and act on intelligence. potentially vital in real time.
The official, who briefed reporters under the regulatory condition of anonymity established by the White House, said that such a mandate would not only be operationally unfeasible, but also legally unnecessary because it would force officials to obtain a court order to examine intelligence information that It was already legally collected.
Wray, in prepared remarks for the House internal affairs panel, said the requirement for a court order would amount to a “de facto prohibition” in part because of the amount of time and resources required to prepare a request for a warrant. court order.
The warrant requirement has the support of Republican Rep. Jim Jordan, chairman of the House Judiciary Committee — and one of the most pro-Trump members of Congress — and Democratic Sen. Ron Wyden, a trusted defender of civil liberties. civilians and liberal standard-bearer for decades.
Wyden last week released a bill with a bipartisan group of lawmakers — including Republican Rep. Andy Biggs, a staunch Trump supporter — that would require a court order except for limited exemptions, such as when officials need to stop an imminent threat or whether the subject of the query has given consent to the search.
In an interview, Wyden explained that while he felt strongly about the need for injunctions — they are “important because the Founding Fathers thought they were important” — he also believed his team had taken a measured approach by including significant exceptions to the requirement for an injunction. judicial.
“We are not negotiating with ourselves,” Wyden said. “We have an open door policy. If there are concerns on the part of the government, it must raise them, expose them and discuss them.”