An intense push by right-wing Republicans in Congress to vilify the FBI on charges of policy bias has imperiled a program that allows spy agencies to conduct warrantless surveillance of foreign targets, undermining support for a world-class intelligence tool and amplifying calls for stricter limits.
The once-secret program – created after the 9/11 attacks and described by intelligence officials as crucial to stopping hackers, intelligence services and terrorists overseas – has long faced resistance from Democrats concerned it could trample on freedoms American civilians. But the law authorizing it expires in December, and opposition among Republicans, who have historically supported it, has grown as the GOP has stepped up its attacks on the FBI, taking a page from former President Donald J. Trump and his supporters.
“There is no way to reauthorize it in its current form — no way,” said Rep. Jim Jordan, an Ohio Republican, a key Trump ally who is leading a special House investigation into the “weapon” of the government versus Conservatives « We’re concerned about surveillance, period. »
At issue is a program that allows the government to collect — domestically and without a warrant — the communications of targeted foreigners abroad, even when these individuals interact with Americans. Leaders of both parties have warned the Biden administration that Congress will not renew the law that legalized it, known as Section 702, unchanged to prevent federal agents from freely searching email, telephone and other electronic records of people. Americans in contact with supervised foreigners.
Since the last program extension in 2018, the GOP’s approach to law enforcement and data collection has undergone a dramatic transformation. Contempt for agencies that benefit from the warrantless surveillance program has entered the party mainstream, particularly in the House, where Republicans say the FBI investigation into Trump was biased and complain of a larger conspiracy by the of the government to persecute conservatives, including some of those accused of storming the Capitol on January 6, 2021, for their political beliefs. They argue that federal law enforcement agencies cannot be trusted with Americans’ records and should be prevented from accessing them.
« You can’t make me vote to reauthorize 702, » said Rep. Matt Gaetz, a Florida Republican who supported the program in 2018. They were affiliated with the BLM movement and I’m equally offended by both of those things.
Congress created Section 702 of the Foreign Intelligence Surveillance Act in 2008 and has since revamped the program twice, largely due to overwhelming support from Republican lawmakers. But a significant turnover on Capitol Hill has brought a new generation of Republicans less protective of Washington’s post-9/11 counterterrorism powers, and about half of Republicans in the House have never voted on the matter.
« This will be a first impression for many of them, » said Rep. Darin LaHood, a Republican from Illinois, a supporter of the program who is part of the six-member Intelligence Committee working group trying to determine how Congress can restrict the program without hampering it. “The thought that 702 and FISA only focused on terrorism – I think the narrative needs to be changed. We need to focus on China, we need to focus on Russia, we need to focus on Iran and North Korea. »
The Biden administration has made a similar case to lawmakers, asking them to revamp the Section 702 program, which National Security Advisor Jake Sherman has called « crucial » to warding off national security threats from China, Russia, cyberattacks and terrorist groups.
But far-right lawmakers have embarked on a stronger and more politically charged effort to fight the measure. They have seized upon official determinations that federal agents miswired a Trump campaign adviser and more recent revelations that FBI analysts misused Section 702 to seek information on hundreds of Americans who have been scrutinized in connection with the 6 January attack and Black Lives Matter protest following the 2020 murder of George Floyd by a police officer.
Justice Department and FBI officials have attempted to fend off outrage from lawmakers over those revelations by pointing to the steps they have taken to limit the opportunities agents are allowed to review American communications collected under Section 702. They credit those changes with reducing the number of such queries from about 3 million in 2021 to about 120,000 last year.
But their initial salvos did not sway skeptical Democrats whose support the Biden administration should need for an extension of the spy program.
In recent years, Capitol Hill has welcomed several new Democrats with national security backgrounds who are in favor of extending the program. But persuading others is a challenge, as most party members — including Rep. Hakeem Jeffries of New York, the minority leader — voted against the extensions. President Biden also voted against the bill to legalize the program in 2008, when he was a senator.
Democratic advocates have been adamant that any new authorization will have to include significant limitations on how and when agents can scour their databases for information about Americans, in the hopes that those safeguards will allay lawmakers’ long-standing concerns about the potential for abuse.
« We’ve been very clear with the administration that there’s not going to be a clean reauthorization — there’s no way we’re going to do that, » said Rep. Jason Crow, Democrat of Colorado, who also sits on the section’s working group. 702 of the intelligence committee.
He suggested the restrictions would include limits on when agents could query their databases for information about Americans and requirements that it’s guaranteed to be obtained in some circumstances.
Rep. Chris Stewart, a Utah Republican who is a member of the intelligence committee’s working group and the weapons group, said some members of his party could be persuaded to reauthorize the program with « profound reforms. »
“But there will still be a number who will never authorize that,” Stewart added. « Being on the armament committee, I’ve seen insights into some of their thinking — and there are some that they’ll just never get on. »
The administration has signaled it is open to discussing other changes in the theory. But FBI and Justice Department officials this month rejected specific proposals during their first public appearance on Capitol Hill to discuss the issue, angering lawmakers.
« I have no doubts about the value of foreign intelligence, but the look of the US person is really concerning to Congress, » Senator Jon Ossoff, a Democrat of Georgia, told officials at a Judiciary Committee hearing. « I don’t think you actually said that there shouldn’t be a tenure requirement. »
The chairman of the commission, Senator Richard Durbin, Democrat of Illinois, did not consider the changes sufficient. “If the reforms you mentioned in 2021 and 2022 are the only reforms you are bringing to this committee as we discuss the future of Section 702, I need to see more,” he told agency officials.