A Critical US Intelligence Tool at Risk of Expiration Without Congressional Agreement

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As the year draws to a close, with only seven weeks remaining, the urgency mounts for the Biden administration to secure reauthorization of a critical intelligence program deemed essential for thwarting terrorism, espionage, and cyber threats.

This program, identified as Section 702 of the Foreign Intelligence Surveillance Act, faces expiration by December’s end without a consensus between the White House and Congress. The ongoing debate, merging concerns over privacy and national security, has created unique bipartisan alignments and remains a contentious issue.

The administration stresses the program’s importance for gathering vital intelligence abroad, warning of significant gaps in capabilities should it lapse. Conversely, civil liberties groups, spanning the political divide, argue that the current framework encroaches on Americans’ privacy rights, demanding revisions before renewal.

Assistant Attorney General Matthew Olsen emphasized the criticality of renewing this law, labeling it as a key national security decision for the nation.

Introduced in 2008, the law allows U.S. intelligence agencies to collect, without warrants, communications of foreign individuals overseas considered national security threats. This also leads to incidental collection of communications involving Americans when they interact with these foreign targets.

The Biden administration has highlighted numerous instances over the past year where intelligence from Section 702 played a pivotal role in foiling attacks and aiding significant operations, like the elimination of al-Qaida leader Ayman al-Zawahri.

Officials note that a substantial portion of the President’s daily intelligence briefings relies on information from this section. The ongoing conflict between Israel and Hamas, raising domestic attack concerns, underscores the program’s relevance.

Despite general agreement on the program’s value, significant differences remain regarding its structure. These differences have led to a deadlock as the deadline looms, with Congress preoccupied with a packed year-end schedule, including potential government shutdowns and debates over border security and military funding. The White House has already rejected a legislative proposal, deeming it impractical.

A diverse group of lawmakers, including privacy-focused Democrats and Republicans still wary of intelligence agencies due to the 2016 Trump campaign’s Russia investigation, further complicates consensus-building.

This urgency and brinkmanship are not new, echoing past negotiations on government surveillance powers. The program’s last renewal in 2018 followed a divided congressional vote and was signed into law by President Trump, who both lauded its effectiveness and welcomed new privacy safeguards.

Jamil Jaffer, founder of the National Security Institute, recalls similar last-minute negotiations from past renewals, emphasizing the historical pattern of such deadline-driven discussions.

A major current debate centers around the insistence by some in Congress, against White House opposition, for a warrant requirement before accessing intelligence on individuals within the U.S. This debate is fueled by recent disclosures of inappropriate database searches by FBI analysts, covering events like the January 6, 2021 Capitol riot and 2020’s racial justice protests.

The administration argues that FBI compliance errors are rare and asserts that reforms have been implemented to safeguard civil liberties.

Both Republican Rep. Jim Jordan and Democratic Sen. Ron Wyden, known for their contrasting political stances, support a warrant requirement. A bipartisan bill, led by Wyden and including Republican Rep. Andy Biggs, proposes such a mandate, albeit with exceptions for urgent threats or consensual searches.

The administration, however, views this requirement as a “red line,” asserting it would hinder real-time intelligence analysis and is unnecessary since the data is already lawfully gathered.

Wyden, affirming the importance of warrants, invites open dialogue with the administration to address their concerns, emphasizing a balanced approach in the proposed bill.

This report also includes contributions from Farnoush Amiri of Big Big News.

Frequently Asked Questions (FAQs) about US intelligence reauthorization

More about US intelligence reauthorization

• Foreign Intelligence Surveillance Act (FISA) Section 702 – The full text of Section 702 of FISA.
• The Hill – The source of the original text.
• National Security Institute – Information on the National Security Institute at George Mason University.
• Bipartisan Bill – Details of the bipartisan bill proposed by Sen. Ron Wyden and others.
• Biden Administration – Information on the Biden administration’s stance on Section 702 renewal.