The Biden administration’s special intelligence council concluded that ending a surveillance tool that has been the subject of intense scrutiny from lawmakers in recent months could lead to a massive intelligence failure, in a report published on Monday.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire in December, and for the first time since 2008 Congress has proposed striking the provision amid revelations the FBI abused the authority to conduct nearly 300,000 inappropriate queries on U.S. citizens. In a report, the President’s Intelligence Advisory Board conceded that the FBI’s systemic misunderstanding of how Section 702 surveillance powers are applied led to accidental illegal queries, but said failure to reauthorize the provision could jeopardize the government’s ability to find and neutralize national security threats.
National Security Council leaders agreed with the panel that “failure to reauthorize Section 702 could be ‘one of the worst intelligence failures of our time,’” according to a White House statement.
“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,” National Security Adviser Jake Sullivan and Principal Deputy National Security Adviser Jon Finer said in the statement.
FISA Section 702 allows U.S. intelligence agencies to gather data on Americans without a warrant as a consequence of surveilling foreign “targets” abroad, while conducting several thousand searches each year.
The FBI, CIA, NSA and National Counterterrorism Center (NCTC) have access to the Section 702 database.
“Section 702 has been a vital, foundational intelligence tool upon which a myriad of other foreign intelligence efforts depends,” the presidential board said. “Without U.S. person queries, the government would be far less capable of identifying potentially harmful links between foreign threats and U.S. persons.”
Roughly 69% of presidential daily briefings, which inform all substantial national security-related policy decisions, contain information derived from Section 702 queries, according to the report. U.S. person queries allow the agencies to link foreign threats to targets in the U.S., putting a stop to attempting bombings, cyber attacks, illicit fentanyl trade and other threats that are redacted in the final report.
“Unfortunately, complacency, a lack of proper procedures, and the sheer volume of Section 702 activity led to FBI’s inappropriate use of Section 702 authorities, specifically U.S. person queries,” the panel found.
The panel proposed reforms and stricter oversight to bring the FBI’s behavior back in line. One reform, if adopted, would block the FBI from accessing the Section 702 database for probes of non-national security-related crimes.
“There is no way, no way that we are going to reauthorize section 702 of FISA in its current form, that’s where they illegally queried this database and got information on Americans,” House Judiciary Committee Chairman Jim Jordan said on July 12.
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