Officials press Congress to reauthorize spy powers
- By Sean D. Carberry
- Jun 28, 2017
Sen. Lindsey Graham wants to know if he was caught on tape in secret government intercepts.
Senior intelligence officials had a clear message for the Senate Judiciary Committee: Reauthorize Section 702 of the Foreign Intelligence Surveillance Act as it is, and this time, make it permanent.
The program that allows the government to monitor the communications of non-Americans who are outside the U.S. without a warrant is set to expire at the end of 2017, and some members of Congress have been raising concerns about the statute's privacy and transparency protocols.
While the target of 702 surveillance must be a foreigner outside the U.S., Americans are routinely swept up in monitored communications, and members of Congress from both parties have been pressing the intelligence community for years to provide an estimate of the number of Americans who are "incidentally collected" in 702 surveillance.
IC leaders have stated in recent hearings that providing such an estimate is technically unfeasible and would require violating the privacy of Americans in the process -- an answer that has not appeased 702 critics.
Senators also asked whether the FBI should be required to obtain a warrant when querying 702 data on Americans to search for evidence criminal activity.
Stuart Evans, deputy assistant attorney general for intelligence in the Department of Justice's National Security Division, said that courts have determined that a warrant is not required to query data on Americans.
"We are not acquiring any new information," he said. "We are not conducting any additional surveillance. It is simply a targeted review of information already in our possession that we have gathered through the surveillance previously of a foreigner overseas."
The witnesses provided several examples of cases where terrorists were captured or plots were foiled due to intelligence gathered under 702.
Paul Morris, the National Security Agency's deputy general counsel for operations, publicly revealed at the hearing that in 2016, the NSA gained intelligence in part through 702 collection about a foreign government's state-sponsored phone application that was a cybersecurity threat.
"Because of this discovery, the app was ultimately removed from the various phone application marketplaces," Morris said.
The witnesses emphasized that there is robust oversight of 702 activities, low error rates and no cases of intentional abuse of the powers. Therefore there is no need for the reauthorization to include any amendments or a sunset clause, they said.
Several senators voiced unwillingness to give up that leverage over the intelligence community, and nearly every senator at the hearing expressed a desire for some additional transparency mechanisms and privacy protections.
But the real fireworks at the hearing came when Sen. Lindsey Graham (R-S.C.) pressed Bradley Brooker, the acting general counsel in the Office of the Director of National Intelligence over his request to know whether any of his conversations with foreign officials had been collected under 702 surveillance.
"Am I ever going to get [an answer] in my lifetime? And if you're not going to give it to me, tell me why," stated Graham who submitted an official request several months ago.
"Do I have the legal right as a United States senator to find out if my government is monitoring a conversation between me and a foreign leader and if anybody had access to that conversation?" Graham asked Brooker.
Chairman Charles Grassley (R-Iowa) extended Graham's time to allow him to press for an answer.
"Should I be worried about that conversation falling in the hands of political people that one day maybe used against me?" Graham continued.
Brooker did not answer directly whether Graham has the legal right to ask for information collected about him. "We are working with your staff to try to get you an answer [to your request] as quickly as possible," he said.
Graham's exchange highlighted the frustrations many members of Congress have expressed over the lack of transparency around the numbers of Americans swept up in the surveillance.
"We've given you more and more authority," Sen. Dick Durban (D-Ill.) told witnesses later in the hearing. "All we're asking is, how carefully are you using it?"
Sen. Mike Lee (R-Utah) proposed reining in the scope of potential targets under 702. Currently, the law allows surveillance of foreign targets suspected of being threats to national security as well as targets "relevant to the foreign affairs of the United States," said Lee, which could include activists, students, journalists or "just about anyone traveling abroad."
"Is there any reason why we couldn't and shouldn't limit the use of Section 702 to something that's related to a national security threat?" Lee asked.
Evans said that while the details are classified, there is a high bar for analysts to cross to get authorization to spy on a target, and that ensures the target has intelligence information or is a threat to national security.
The second panel included Adam Klein, senior fellow at the Center for a New American Security, and Elizabeth Goitein, co-director of the National Security Program at New York University Law School's Brennan Center. Both argued for reforms to 702.
Goitein pressed for a warrant requirement for FBI queries of U.S. person data and for Congress to legislate a ban on so-called "about" collection, which the NSA voluntarily suspended in May.
She also said the government has not been forthcoming about which crimes the FBI can use 702 data to prosecute and that it has not responded to freedom of information requests. She alleged that the government regularly uses 702 as a backdoor to acquire evidence on Americans without having to obtain a warrant.
"The government has spotty compliance at best with the statutory requirement that it notify criminal defendants when using evidence obtained or derived from 702," she said. "The government's interpretation of 'derived from' appears to be quite generous, perhaps creative."
Klein, who is a strong supporter of Section 702, also argued for greater transparency in the query process and in how that data is used in criminal cases against Americans. He advocated for strengthening the Privacy and Civil Liberties Oversight Board as well as the FISA Court.
While he said he did not want to see new requirements that create intelligence stovepipes, more transparency will give 702 more legitimacy in the eyes of the American people.
"Programs that lack public support will not be sustainable," he warned senators.
Sean Carberry is a former FCW staff writer who focused on defense, cybersecurity and intelligence.