Assistant Secretary of State Brett Holmgren said on May 30 that abuses of Section 702 of the Foreign Intelligence Surveillance Act (FISA) are “disturbing,” but he said the program should continue.
Holmgren, who oversees the State Department’s Bureau of Intelligence and Research (INR), emphasized the national security and diplomatic uses of 702, downplaying abuses.
“Today INR and the State Department that we serve, is at risk of losing access to one of the most important streams of intelligence on which we rely ... Section 702 of the Foreign Intelligence Surveillance Act,” Holmgren said.
FISA Section 702 is a provision in U.S. law that allows for intelligence gathering on foreign agents operating outside the U.S. However, a litany of violations has left the fate of the program—which is set to expire on Dec. 31 if Congress doesn’t reauthorize it—uncertain.
Most prominently, Section 702 has been repeatedly abused by the FBI.
After 2021, the agency reportedly made internal reforms. Director Christopher Wray has said that illegal queries decreased by 90 percent after changes were instituted.
Downplaying Scale of Alleged Abuses
During a speech at the Center for Strategic International Studies in Washington, Holmgren argued in favor of the diplomatic and national security benefits of the program.Downplaying the scale of the alleged abuses, Holmgren recognized that there will be some violations.
He said that he found the revelations of FBI spying on Americans using Section 702 “disturbing and unfortunate.” Still, he emphasized other facets of the program.
“Since the founding of our republic, intelligence has advanced American interests in the world,” Holmgren said, referencing U.S. intelligence operations from the Revolutionary War to World War II.
“[Section] 702 has been vital to countering ... national security threats,” including “foreign threats, terrorists and cyber attacks, espionage, and weapons of mass destruction,” Holmgren said. “Simply put, the 702 program doesn’t just help defend and protect U.S. interests. It is essential to advancing and promoting U.S. interests in the world.”
Under the law as written, Section 702 doesn’t authorize directly gathering information attached to U.S. citizens.
However, it does allow intelligence agencies to target suspected foreign agents and can allow intelligence agencies to collect an exponentially increasing pool of data from the suspect agent’s contacts.
Holmgren emphasized INR’s procedural safeguards concerning “unmasking” a specific U.S. citizen’s data only after an agent proves the data’s importance to national security.
“If that expert feels they need to unmask [a U.S. citizen’s identity] to help inform their analysis of that situation,” to deal with security, cyber, or other threats, “they will submit a request, it’s documented,” Holmgren said. It’s then sent off to be approved by superiors and others “to see if it’s for a valid purpose.”
“It’s all well-documented,” he said. “We recognize that it’s an extremely sensitive matter to seek these unmasking requests.”
But the FBI has been accused of using FISA Section 702, a provision intended for national security purposes, for purely domestic concerns, allegedly harnessing it to hunt down those who participated in the Jan. 6, 2021, Capitol breach, according to another report from the FISA court.
Holmgren said that the fact that reports of FBI abuse came to light in the first place demonstrates that the process is working and shows that the broader intelligence community respects the Fourth Amendment rights of Americans.
“It shows the oversight process is working to expose problems that—obviously—need to be remediated and addressed,” he said.
While many intelligence analysts have long repeated cries to reauthorize Section 702, that privilege ultimately lies with Congress.
Currently, Rep. Darin LaHood (R-Ill.) is leading a bipartisan working group that hopes to make legislative reforms to Section 702 to prevent future abuses, but whether that will mean a significantly neutered Section 702 remains unclear.
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