Senior intelligence officials sought to shock Congress on Tuesday into renewing controversial spy powers, saying without the so-called “Section 702” ability to scoop up global communications the CIA and FBI would struggle to stop Iranian assassination attempts, Chinese hackers, Russian crimes in Ukraine, and drug smugglers pouring fentanyl across America’s southern border.
But they’re fighting an uphill battle after new revelations of appalling abuses, including illegally querying communications from Black Lives Matter protesters, crime victims and donors to a U.S. political campaign.
Some 278,000 improper queries involving Americans were run on the data between 2016 and 2020.
That level of abuse has endangered the existence of Section 702, which will expire at the end of this year unless Congress passes new legislation. Key lawmakers said no extension will be granted unless it’s coupled with major reforms and better transparency on who’s getting snooped, and why.
“You have to, I hope, understand why some of us are skeptical at this point,” Senate Judiciary Committee Chairman Richard Durbin told the intelligence officials at a hearing Tuesday.
Assistant Attorney General Matt Olsen acknowledged the problems — “I don’t defend them,” he said — but he told the committee not to lose sight of what the 702 program does.
He said 702 data has helped disrupt assassination plots, stop kidnappers and allow the FBI to defeat computer ransomware attacks, along with tracking terrorists.
“We must not forget the lessons of 9/11,” he intoned.
Section 702, part of the Foreign Intelligence Surveillance Act, grew out of the 2001 terrorist attacks, when the Bush administration concluded it needed to do more to track foreigners’ communications.
It launched the secret program to scoop up communications flowing across American telecommunications companies’ networks.
Congress belatedly moved to authorize the program formally in 2008, and renewed that authorization most recently in 2017.
As envisioned, Section 702 scoops the data and allows it to be stored by U.S. agencies. It can then be queried by the CIA, FBI or National Security Agency as they probe foreign persons located outside the U.S.
They are not supposed to target U.S. citizens, but since U.S. communications are also scooped up, queries can sometimes return data from Americans, even though no warrant was obtained.
Intelligence officials said a warrant comes into the picture once a U.S. person is suspected.
That wasn’t much of a reassurance for some senators who pointed to the recently revealed abuses at the FBI, combined with an already palpable sense of distrust with the FBI.
Sen. Mike Lee, Utah Republican, said he’s been raising issues of FISA abuse for years, and each time is told that the FBI has “good people” and strong procedures in place.
Yet abuses keep piling up.
“First they tell us there are no problems, then they tell us ‘We will fix them because we’ve got good people and new policies. This time it’s going to be different.’ Only later, we find out the FBI conducted more and more illegal searches in violation of Americans’ constitutional rights,” he said. “This is what I find so insufferable. This is what I find so incredibly insulting.”
Mr. Olsen, on cue, delivered another promise.
“I share the frustration that you express with the lack of compliance that we’ve seen in past years from the FBI,” he said. “What I can tell you is those compliance problems predate some of the very significant changes that the FBI has put in place.”
But he also said the cost of losing the tool outweighs those worries about abuse.
“The tool itself is so incredible to our national security that I believe its essential effectiveness must be preserved,” he said.
The NSA said 59% of the president’s daily intelligence briefing can be traced back to communications scooped up thanks to Section 702. The CIA said nearly 40% of articles in the agency’s daily world intelligence review contain data derived from Section 702 collections.
Hoping to hit a nerve with lawmakers whose constituents are howling about record drug overdoses, the officials hit particularly hard on Section 702’s use in targeting cartels that manufacture and smuggle fentanyl, the synthetic opioid at the heart of the overdose epidemic.
“Without 702 we would be missing essential information on the dangerous groups and individuals behind overseas fentanyl production and distribution,” said CIA Deputy Director David Cohen.
He also said if the data collection were to go away, it would mean risking the lives of CIA officers and their contacts to try to acquire the information using more-personal methods.
The NSA, the country’s top signals-intelligence agency, said its compliance rate for properly targeted queries of the data is higher than 99%.
The FBI said its compliance rate is at 94%, after the recent changes.
Mr. Olsen said one key change was simple. Previously, when an FBI agent or analyst queried the bureau’s data, it looked at a range of databases at the same time, including the Section 702 data.
After the change, the employee needs to proactively select — and defend — the need to search Section 702 data for it to be part of a search.
It’s not clear why that wasn’t always the standard, but officials said the opt-in change, made in 2021, has had an immediate effect: The number of queries of 702 data involving U.S. citizens dropped by 93%.
But before that change, the FBI ran 278,000 improper queries involving Americans between 2016 and 2020, according to a recently declassified opinion from the Foreign Intelligence Surveillance Court, which has a role in overseeing the program.
Mr. Olsen said the large number of wrong queries had to be contextualized, saying that more than 100,000 of those were attributable to a single bad “batch” query.
The administration officials insisted they can police themselves.
Mr. Olsen said one FBI employee was fired for intentional abuse of Section 702 data, and FBI Deputy Director Paul Ahbate announced a new “three strikes” policy on Tuesday that he said will include various warnings and sanctions — including firing — depending on the willfulness of the errors.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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