Anger at FBI shapes future for surveillance program
Intelligence agencies fighting to keep vast powers to collect foreign communications
WASHINGTON — Growing anger at the FBI from both parties in Congress has become a major hurdle for U.S. intelligence agencies fighting to keep their vast powers to collect foreign communications that often sweep up the phone calls and emails of Americans.
Key lawmakers say they won’t vote to renew the programs under Section 702 of the Foreign Intelligence Surveillance Act that expire at the end of this year without major changes targeting the FBI. Many blame problems with how the FBI’s special agents search for U.S. citizens using Section 702 — along with publicly revealed mistakes in other intelligence investigations by the bureau.
Among the revelations since the law was last renewed in 2018: The bureau misled surveillance court judges in seeking to wiretap a 2016 campaign aide for former President Donald Trump, and agents didn’t follow guidelines in searching Section 702 databases for the names of a congressman on the House Intelligence Committee, a local political party, and people of Middle Eastern descent.
Two successive chief judges of the primary U.S. surveillance court criticized the bureau in written opinions, with one saying the frequency of mistakes in the bureau’s investigation of Russian election interference “calls into question whether information contained in other FBI applications is reliable.”
U.S. intelligence officials argue the law is perhaps their most critical tool to stopping terrorism, enemy spies, and cyberattacks. According to the intelligence community, 59% of the items in the briefing given daily to President Joe Biden last year featured information the National Security Agency captured under Section 702.
“Like any major institution, we have made mistakes,” FBI Director Chris Wray testified before Congress in March. “To me, the mark of a leading organization is not whether it makes mistakes or not ... but whether we learn from those mistakes. And I think we have.”
The FBI says it tightly controls how agents access Americans’ data, including a checklist agents are supposed to use in searches.
Bureau officials this week released a checklist their agents are supposed to use in conducting searches. They also have overhauled their computer systems and added new mandatory training for agents in December 2021.
“Section 702 has kept American citizens safe and our U.S. service members abroad out of danger,” said Rep. Mike Turner, the Ohio Republican who chairs the House Intelligence Committee, in a statement. “However, changes must be made in order to prevent further FBI misuse and abuse of this vital national security tool.”
Reps. Pramila Jayapal,
D-Wash., and Warren Davidson, R-Ohio, issued a joint statement in March saying the FBI was searching for Americans “at an alarming scale” and calling for an overhaul of the program.
Searches likely to bring back 100 or more results must now be cleared first with an FBI attorney, and the deputy director must personally approve what the FBI calls “certain types of sensitive queries,” including searches of U.S. public officials.
Rep. Jim Himes of Connecticut, the top Democrat on the House Intelligence Committee, argued some Republican critics were motivated by the investigations against Trump, including the search that the FBI conducted last year of his Florida residence.
“I think anger at the FBI has become an article of faith in the Republican conference,” he said in an interview.
Under Section 702, the U.S. collects foreign communications without a warrant — and with the required participation of American telecom companies — to create databases that analysts can search for intelligence purposes.