WASHINGTON – A top U.S. intelligence official on Thursday urged Congress to renew sweeping powers granted to American spy agencies to surveil and examine communications, saying they were critical to stopping terrorism, cyberattacks and other threats.
The remarks by Army Gen. Paul Nakasone, director of the National Security Agency, opened what’s expected to be a contentious debate over provisions of the Foreign Intelligence Surveillance Act that expire at year's end. The bipartisan consensus in favor of expanded surveillance powers in the years after Sept. 11 has given way to increased skepticism, especially among some Republicans who believe spy agencies used those powers to undermine former President Donald Trump.
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The new GOP majority in the U.S. House has already formed a panel on the “weaponization of the federal government." And progressive Democrats have pushed for more curbs on warrantless surveillance.
The NSA and other spy agencies use authorities under FISA's Section 702 to collect huge swaths of foreign communications, which also results in the incidental collection of emails and calls from Americans. The law prohibits spy agencies from targeting Americans and requires the FBI to seek a court order to access a U.S. citizen's communications.
Section 702 was first added to FISA in 2008 and renewed for six years in 2018, when Trump originally tweeted opposition to the program but then reversed himself.
Nakasone argued the law “plays an outsize role in protecting the nation" and generates “some of the U.S. government’s most valuable intelligence on our most challenging targets.”
He gave several broad examples of that work, including the discovery of attempts to steal sensitive U.S. technology, stopping the transfer of weapons components, preventing cyberattacks, and “understanding the strategic intentions” of China and Russia.
“We have saved lives because of 702,” Nakasone told a virtual meeting of the U.S. Privacy and Civil Liberties Oversight Board.
The general said he could not publicly share more details about the impact of that surveillance, acknowledging that also limited his ability to make his case. Civil liberties advocates have long criticized the secrecy of intelligence court proceedings and the power agencies have to collect years of incidental data on Americans.
Cindy Cohn, executive director of the Electronic Frontier Foundation, said Congress had created an effective “national security exception to the U.S. Constitution.”
“The American people and indeed people all around the world have lost the ability to have a private conversation over digital networks,” she told the board. Section 702, Cohn said, “was a mass monitoring infrastructure that subjects people's communications to NSA review.”
Republicans on the House Intelligence Committee and other national security hawks are expected to push GOP colleagues to support a renewal this year accompanied by still-unspecified changes.
“We've got to have a discussion within our own caucus, but I feel good about the groundwork we've laid,” said Rep. Mike Gallagher, a Wisconsin Republican who will lead the House's new select committee on China, in an interview this week. “There's serious and legitimate concern. And so part of the process of getting renewal is to put in place reform that gives people confidence that there won't be abuses in the future.”
In December 2019, the Justice Department’s inspector general found the FBI had withheld key information from the Foreign Intelligence Surveillance Court as it applied for warrants to monitor the communication of Carter Page, a Trump campaign aide. But the inspector general did make clear the extent to which agents relied during that process on uncorroborated allegations compiled by a former British spy.
The chief judge of that court would issue an unusual rebuke to the FBI, saying it had made “unsupported” representations as it submitted the eavesdropping applications and had failed to provide other information that would have weakened the government’s case for surveillance.
Responding to the scrutiny, the FBI announced a series of changes designed to ensure that its applications to the court, which approves warrants to eavesdrop on American soil on people suspected of being agents of a foreign power, are more accurate.
Congress in 2020 let expire three provisions of the Patriot Act that the FBI and Justice Department had said were essential for national security, including one that permits investigators to surveil subjects without establishing that they’re acting on behalf of an international terrorism organization. A bill renewing those authorities passed the Senate, but Democrats pulled legislation from the House floor after Trump and House Republicans turned against the measure and ensured its defeat.