Not Renewing Surveillance Power Could Be ‘One of the Worst Intelligence Failures of Our Time’: White House

National Security Council Coordinator for Strategic Communications John Kirby speaks during a press briefing at the White House in Washington on June 26, 2023. (Madalina Vasiliu/The Epoch Times)

Failure to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) could constitute “one of the worst intelligence failures of our time,” according to White House National Security Council spokesman John Kirby.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) was enacted by Congress in 2008 as a measure to bulk up U.S. national security in the aftermath of the Sept. 11, 2001, terror attacks. The provision allows intelligence agencies to conduct warrantless surveillance of foreigners located outside the United States.

While the law bars the targeting of Americans, it also incidentally collects information on Americans. Warrantless searches of communications collected under Section 702 for information on Americans are also allowed in certain circumstances. This practice has drawn significant civil liberty concerns from politicians from both the left and right.

If not reauthorized by Congress, the measure is set to expire on Dec. 31. If that happens, Mr. Kirby told reporters during a phone call, it could constitute “one of the worst intelligence failures of our time.”

FISA section 702 “is one of the nation’s most critical intelligence tools that’s used to protect our nation,” Mr. Kirby said.

“Thanks to the intelligence obtained under this authority, the United States has been able to understand and respond to threats posed by the People’s Republic of China, to rally the world against crushing atrocities in Ukraine, to locate and eliminate terrorists who are intent on causing harm to our interests and those of our allies and partners, to enable the disruption of fentanyl trafficking, to help mitigate the Colonial Pipeline ransomware attack and much, much more.”

Mr. Kirby’s remarks came a day after the White House Intelligence Advisory Board said that the program was “essential” to defending the United States from terrorism, cyberattacks, foreign actors, deadly drugs, and other threats.

While the board acknowledged the FBI’s history of “inappropriate” queries of 702 data, it concluded that the national security benefits of Section 702 outweigh any concerns about potential future violations of Americans’ constitutional rights.

“The Board concludes that jettisoning Section 702 over compliance errors made in its first 15 years would be a tremendous mistake,” the report states before recommending that reforms be made.

During testimony before the U.S. Senate in June, several intelligence officials also spoke out in defense of the tool.

Matthew Olsen, assistant attorney general, emphasized the importance of the tool, which he called “irreplaceable and invaluable” to presidential daily briefings. He said around 59 percent of the president’s daily briefing materials came from Section 702 and that practically 100 percent was derived at some point from Section 702 data.

History of Abuses

But lawmakers aren’t convinced in light of a series of abuses of the program that have continued despite promised reforms within the Federal Bureau of Investigation (FBI).

Under the adjudicated rules of the program, information regarding American citizens can only be “unmasked”—or attached to a particular American citizen rather than anonymously aggregated—with the approval of agency superiors. Those wishing to unmask American information under the program have to show a national security interest in doing so.

But a laundry list of abuses of the program has come to the public’s attention in the span of only a few short years.

As part of the FBI’s Crossfire Hurricane probe into President Donald Trump and his associates, an investigation which has since been discredited, the FBI utilized FISA authority against Mr. Carter Page, an associate of Mr. Trump. The warrant presented to the court justifying this surveillance was later found to have at least 17 errors and omissions of fact.

More recently, it was revealed that in 2021, the FBI used FISA authority to conduct more than 3.3 million queries of American citizens—including repeated queries of an unnamed sitting member of Congress.

After this alarming report came to light, the FBI vowed to make changes.

A 2022 court opinion made public earlier this year revealed that the FBI had made an additional 278,000 improper queries, including domestic queries of Jan. 6 protestors, Black Lives Matter protestors, and nearly 20,000 congressional campaign donors.

The FBI said these findings were made before the agency overhauled its system, which led to a significant drop in queries and a decline in the number of improper searches, according to a watchdog report.

But a recently-unsealed court opinion found that in 2022, an FBI employee had improperly searched 702 data for the last names of a state senator and a U.S. senator, both alleged targets of a foreign intelligence operation. Another FBI employee last year also improperly queried the Social Security number of a state judge who alleged civil rights violations by a municipal chief of police, the opinion stated. Both of these inappropriate queries were made after the agency instituted its reforms.

In 2017, Congress voted narrowly to reauthorize the program, with lawmakers from both parties expressing concerns about civil liberties violations. But this year, bipartisan lawmakers are insisting they won’t support a reauthorization without additional changes and new legislative safeguards, at a minimum.

An effort led by Rep. Matt Gaetz (R-Fla.) would abolish the program altogether, citing these and other civil liberty concerns, allowing the program to sunset on its expiration date at the end of the year.

Despite these abuses, however, Mr. Kirby said the program should be renewed without much in the way of new legislative safeguards.

“Section 702 should be reauthorized without new and operationally damaging restrictions on reviewing intelligence lawfully collected by the government, and with measures that build on proven reforms to enhance compliance and oversight among other improvements,” Mr. Kirby said.

He said the defense and intelligence community, including the president’s intelligence advisory board, were “working with Congress to ensure its reauthorization.”