A White House board of intelligence experts made the case Monday for reauthorizing one of the intelligence community’s most controversial tools, arguing failure to do so could be “one of the worst intelligence failures of our time.”
Congress has until the end of the year to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), a process looking more in doubt amid growing lawmaker mistrust of the FBI as well as concern the practice unnecessarily sweeps up information on Americans.
“The Board strongly believes that Section 702 authorities are crucial to national security and do not threaten civil liberties, so long as the requisite culture, processes, and oversight are in place,” the President’s Intelligence Advisory Board (PIAB) wrote in its report.
“The cost of failure is real. If Congress fails to reauthorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time.”
Section 702 allows intelligence outfits to undertake warrantless surveillance of foreigners located outside of the U.S., but their communications with American citizens are often captured in the process. That creates a database officials can query that critics have likened to backdoor searches of U.S. citizens.
Much of the consternation around Section 702 has been focused on the FBI, the intel agency with the most domestic scope of work but also a history of improperly using the tool — a problem the bureau has acknowledged and done some work to address.
That issue surfaced anew when a FISA court opinion from April released earlier this month revealed 702 searches were improperly done on a U.S. senator, state lawmakers and a state court judge.
“The Board, however, found no evidence of willful misuse of these authorities by FBI for political purposes,” PIAB wrote in the report.
“To date, the Department of Justice (DOJ) has only identified three incidents of intentional misconduct from among millions of FBI queries of Section 702 information and FBI has addressed the incidents appropriately.”
However, many of the board's proposed reforms are directed at the FBI, including directing the attorney general to limit the bureau’s ability to conduct some 702 queries for non-national security-related crimes.
The board also recommends establishing a more rigorous preapproval process for those wishing to use 702 to search for information related to U.S. citizens.
In a call with reporters, however, officials stressed they would not back any plan that would require getting a warrant to use the 702 database for information concerning Americans, noting that it's been used to assess whether an American is the victim of a crime or the target of foreign intelligence services.
“One thing we do not recommend is a warrant for every U.S. person inquiry … That issue of U.S. personal inquiries, particularly by the FBI, has been a dominant issue in this discussion. We do not recommend that in part because obviously, when you're first assessing whether or not the U.S. person is the victim of cyberattack or an effort by a Chinese intelligence officer for recruitment, you have no probable cause to believe that that person is a foreign power or an agent of a foreign power,” a PIAB board member said.
“So there are legal limitations to getting a warrant each time, not to mention the burdensome nature.”
The FBI in a Monday statement said Section 702 should be “reauthorized in a manner that does not diminish its effectiveness,” a sentiment backed by the White House on Monday.
“We also agree with the Board’s recommendation that 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,” it said in a joint statement from national security adviser Jake Sullivan and principal deputy national security adviser Jon Finer.