Biden seeks to renew 9/11 surveillance law
WASHINGTON — The Biden administration urged Congress on Tuesday to renew a controversial warrantless surveillance law, emphasizing that security officials use it for a broad range of foreign policy and national security goals such as detecting espionage by countries including China and Iran or stopping hackers.
The administration’s effort is likely to face particularly steep headwinds because many Republicans have adopted former President Donald Trump’s distrust of security agencies and surveillance, bolstering privacy advocates who have long been skeptical of the law, known as Section 702.
To head off the resistance, the Biden administration has sought to cast the law, which would expire at the end of the year, as a tool that is used not only for counterterrorism but has also aided the government in preventing foreign actors from creating weapons of mass destruction.
In a letter to lawmakers, Attorney General Merrick Garland and Avril Haines, director of national intelligence, described the law as vital.
“There is no way to replicate Section 702’s speed, reliability, specificity and insight,” they wrote.
Enacted in 2008, Section 702 legalized a form of a warrantless wiretapping program codenamed Stellarwind, which President George W. Bush secretly started after the terrorist attacks of Sept. 11, 2001. It continues to be a counterterrorism tool; the letter also stressed, as National Security Agency Director Paul M. Nakasone said in January, that the surveillance program played a role in the drone strike in August that killed al-Qaida leader Ayman al-Zawahri.
But despite its recent shift in emphasis on uses beyond counterterrorism, the government has relied on Section 702 for the full array of foreign intelligence purposes from the start.
It allows the government to collect — on domestic soil and without a warrant — communications of targeted foreigners abroad, including when those people are interacting with Americans. The National Security Agency can order email services such as Google to turn over copies of all messages in the accounts of any foreign user and network operators such as AT&T to furnish copies of any phone calls, texts and internet communications to or from a foreign target.
Section 702 is an exception to the Foreign Intelligence Act of 1978, or FISA, which generally requires the government to obtain individualized warrants from a court to carry out electronic surveillance activities for national-security purposes on domestic soil.
Republicans lawmakers have traditionally been more supportive of national-security powers. But Trump’s repeated efforts to stoke mistrust of the FBI and surveillance have altered the political calculus in the effort to renew Section 702.
As part of the Russia investigation, FBI applications for FISA wiretaps of Carter Page, a former adviser to the 2016 Trump campaign, were riddled with errors and omissions, an inspector general found. Rep. Jim Jordan of Ohio, a Trump ally and chairman of the Judiciary Committee, which shares jurisdiction over FISA with the Intelligence Committee, told Fox News in October that “I think we should not even reauthorize FISA, which is going to come in the next Congress.”
Notably, however, the kind of wiretapping that the FBI botched in the Russia investigation involved warrants, the authority for which is not expiring.
Section 702 has long attracted skepticism by civil libertarians for privacy reasons: When a targeted foreigner is communicating with an American, the government collects that target’s messages to and from the American without a warrant, too.
Some privacy advocates have proposed requiring officials to obtain a warrant requirement before querying the raw repository of intercepts in search of Americans’ information. National security officials have opposed that idea, portraying it as potentially hamstringing the government to prevent it from accessing potentially important information it has lawfully collected.