Biden Administration Asks Congress to Reauthorize Warrantless Surveillance Law
WASHINGTON — The Biden administration urged Congress on Tuesday to renew a controversial warrantless surveillance law, emphasizing that security officials use it for a broad range of foreign policy and national security goals like detecting espionage by countries like China and Iran or stopping hackers.
The administration’s effort is likely to face particularly steep headwinds because many Republicans have adopted former President Donald J. Trump’s distrust of security agencies and surveillance, bolstering privacy advocates who have long been skeptical of the law, known as Section 702.
To head off the resistance, the Biden administration has sought to cast the law, which would otherwise expire at the end of the year, as a tool that is used not only for counterterrorism but has also aided the government in identifying economic risks and preventing foreign actors from creating weapons of mass destruction.
In a letter to lawmakers, Attorney General Merrick B. Garland and Avril Haines, the director of national intelligence, described the law as vital.
“There is no way to replicate Section 702’s speed, reliability, specificity and insight,” they wrote.
Enacted in 2008, Section 702 legalized a form of a warrantless wiretapping program code-named Stellarwind, which President George W. Bush secretly started after the terrorist attacks of Sept. 11, 2001. It continues to be a counterterrorism tool; the letter also stressed, as the N.S.A. director Paul M. Nakasone said last month, that the surveillance program played a role in the drone strike in August that killed the Qaeda leader Ayman Al-Zawahiri.
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But despite its recent shift in emphasis on uses beyond counterterrorism, the government has relied on Section 702 for the full array of foreign intelligence purposes from the start.
It allows the government to collect — on domestic soil and without a warrant — the communications of targeted foreigners abroad, including when those people are interacting with Americans. The National Security Agency can order email services like Google to turn over copies of all messages in the accounts of any foreign user and network operators like AT&T to furnish copies of any phone calls, texts and internet communications to or from a foreign target.
Section 702 is an exception to the Foreign Intelligence Act of 1978, or FISA, which generally requires the government to obtain individualized warrants from a court to carry out electronic surveillance activities for national-security purposes on domestic soil.
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Republicans lawmakers have traditionally been more supportive of national-security powers like surveillance. But Mr. Trump’s repeated efforts to stoke mistrust of the F.B.I. and surveillance has altered the political calculus in the effort to renew the Section 702.
As part of the Russia investigation, F.B.I. applications for FISA wiretaps of Carter Page, a former adviser to the 2016 Trump campaign, were riddled with errors and omissions, an inspector general found. Representative Jim Jordan of Ohio, a Trump ally who is the chairman of the Judiciary Committee, which shares jurisdiction over FISA with the Intelligence Committee, told Fox News in October that “I think we should not even reauthorize FISA, which is going to come in the next Congress.”
Notably, however, the kind of wiretapping that the F.B.I. botched in the Russia investigation involved warrants, the authority for which is not expiring.
Section 702 has long attracted skepticism by civil libertarians for privacy reasons: When a targeted foreigner is communicating with an American, the government collects that target’s messages to and from the American without a warrant, too.
The letter on Tuesday, addressed to the top Republican and Democratic leaders in Congress, came as Matthew G. Olsen, the head of the Justice Department’s national security division, made the case for extending the law during a speech at the Brookings Institution.
“Its value cannot be overstated,” he said. “Without 702, we will lose indispensable intelligence for our decision makers and warfighters, as well as those of our allies. And we have no fallback authority that could come close to making up for that loss.”
Even as Mr. Olsen acknowledged that government officials have sometimes failed to comply with rules limiting when they can query for Americans’ information gathered under Section 702, he argued that various changes to ensure compliance should give lawmakers and the public confidence. “Unfortunately, in this highly sensitive area, we’ve made mistakes in recent years that have undermined trust,” he said.
Some privacy advocates have proposed requiring officials to obtain a warrant requirement before querying the raw repository of intercepts in search of Americans’ information. National security officials have opposed that idea, portraying it as potentially hamstringing the government to prevent it from gaining access to potentially important information it has already lawfully collected.
“As in past reauthorization cycles,” the letter said, the intelligence community and the Justice Department “are committed to engaging with Congress on potential improvements to the authority that fully preserve its efficacy.”
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