Intel agencies want to make the most controversial foreign surveillance rule permanent

In a Senate Select Intelligence Committee hearing that often veered off route, two of the nation’s most powerful intelligence figures made their case for extending a controversial portion of the Foreign Surveillance Intelligence Act (FISA) known as Section 702. Section 702, which allows the government to intercept the communications of foreign intelligence targets, is set to expire on December 31 unless it is reauthorized by Congress.

NSA Director Michael Rogers broke down two scenarios in which the core controversy, namely the incidental violation of the right to privacy for U.S. citizens, comes up. He claimed that in 90 percent of cases, that form of collection is a result of two foreign targets who talk about a third person who is in the U.S. As Rogers tells it, 10 percent of the time a foreign target ends up talking to an American citizen. Because American citizens have Fourth Amendment rights, running into Americans in the course of foreign surveillance creates the sticky situation known as incidental collection, a major focus for privacy advocates seeking reform.

In the course of justifying Section 702 as an invaluable tool for counterterrorism and counterproliferation efforts, Director of National Intelligence Dan Coats claimed that agencies have made “herculean” efforts to get a count on how many Americans have been affected, but in spite of those efforts it remains impossible. He went on to undermine his argument by implying that it probably would be possible, but that he chooses not to allocate resources to the task when the intelligence community could be focusing on imminent concerns in countries like Iran and North Korea. “I can’t justify such a diversion of critical resources,” Coats said.

He went on to note that without Section 702, intelligence agencies would have to obtain a court order issued due to probable cause — ostensibly the bar that needs to be cleared in order to surveil U.S. citizens. “That’s a relatively higher threshold than we require to foreign intelligence information,” Coats said, noting that he’d prefer not to need to clear the Fourth Amendment bar when investigating foreign targets.

In a broad appeal on 702’s utility, Rogers went so far as to claim that 702 “[created] insights on the Russian involvement in 2016 election,” providing intelligence that would otherwise not have been possible.

On Tuesday, Senate Republicans introduced a bill that would make Section 702 permanent rather than a program that requires regular review and sunsets after a predetermined period of time.  “We can’t handcuff our national-security officials when they’re fighting against such a vicious enemy,” Arkansas Senator Tom Cotton said in defense of the bill. A day later, President Trump’s Homeland Security Advisor Tom Bossert penned an editorial for The New York Times throwing the White House’s support behind efforts to reinstate Section 702 permanently.

Oregon Senator Ron Wyden has called for answers on how many Americans have been swept up by Section 702 just about every chance he gets. In today’s hearing, he again pressed the intelligence leads to clarify how the intelligence community is working to identify the scope of Section 702’s incidental collection concerns.

Following the hearing, Wyden issued the following statement:

“What the director said today is in my view a 180-degree retreat from what he said earlier and what his predecessor said earlier. It reflects a misunderstanding of what this is about. You can’t say that there’s no impact from sweeping up law-abiding Americans’ communications under this program, and then complain that counting the number of those calls and emails would violate their privacy. That just doesn’t pass the smell test. I won’t stop pushing for real transparency about this end-run around the Fourth Amendment.”

While the hearing was explicitly intended to focus on FISA, its timing — a day before former FBI Director James Comey will testify for the first time since his firing — led Senators to frequently derail conversation around the intended topic. Seizing the opportunity, Senators from both sides of the aisle pressed the intelligence chiefs about reports that President Trump had approached them in order to influence the ongoing investigation into Russia’s interference in the 2016 presidential election. Rogers and Coats repeatedly declined to answer, even as Coats admitted that he was not sure he had a legal basis for doing so.