Biden Administration Urges Renewal of Congressional Surveillance Program

President Joe Biden’s administration urged Congress on Tuesday to renew a controversial surveillance program that officials say has become an indispensable tool of U.S. national security.

The program, established under Section 702 of the Foreign Intelligence Surveillance Act, allows U.S. intelligence agencies to collect the online communications of foreigners without a court warrant. 

But critics say the program, which allows the incidental collection of Americans’ communications, has been used to target innocent U.S. citizens.

The measure was first enacted in 2008, and unless Congress reauthorizes, it will expire at the end of December. 

Seeking to prevent its lapse, Biden administration officials embarked on an all-out push on Tuesday to ensure Congressional reauthorization, saying intelligence collected through the program is used to counter threats from China, Russia, North Korea and Iran as well as foreign terrorist organizations.

Matt Olsen, assistant attorney general for national security, said that intelligence collected through the program “contributed” to the U.S. strike that killed al-Qaida leader Ayman Al-Zawahiri in Kabul last summer. 

“In the 15 years since its enactment, Section 702 has become what I think is the intelligence community’s most valuable national security legal tool … and we must retain it to confront the evolving threats we are confronting in the years ahead,” Olsen said, speaking at the Brookings Institution. 

In a joint letter sent on Tuesday, Attorney General Merrick Garland and Director of National Intelligence Avril Haines urged top congressional leaders to “promptly reauthorize” the measure.

In the letter, Garland and Haines “emphasized that there is simply no way to replicate 702’s speed, agility, reliability, and insights,” said Olsen.

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 Section 702.

In a statement, Biden’s national security adviser Jake Sullivan added his voice to the administration’s call for the renewal of Section 702 and other expiring FISA provisions, saying it is a “top priority for the administration.”

“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.

In 2018, Congress reauthorized Section 702 for six years despite initial opposition from then-President Donald Trump.

Although Olsen expressed confidence that Congress will renew the program, the reauthorization effort renews a divisive battle on Capitol Hill.

While moderate Democrats and Republicans support its renewal, conservative Republicans and civil liberties advocates stand in opposition. 

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.

“The FBI is amassing huge quantities of protected communications and then searching through them millions of times each year without a warrant,” Toomey said.

The program allows FBI agents to run search queries of data collected through the program for evidence of serious crimes.

Olsen said the Justice Department instituted a series of changes designed to address concerns about the program.

But Toomey said the Biden administration is seeking reauthorization of the program “without significant reforms that will protect Americans.” 

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