FBI director makes plea for 702 reauthorization without a warrant requirement

FBI Director Christopher Wray at a Tuesday hearing gave an impassioned pitch for Congress to reauthorize warrantless surveillance powers for the intelligence community without the need to secure a court’s blessing to review information on Americans swept up in the process.

Section 702 of the Foreign Intelligence Surveillance Act is set to expire at the end of the year unless it is reauthorized by Congress, threatening to topple a program that allows the U.S. government to monitor the communications of foreign nationals located abroad.

“702 is key to our ability to detect a foreign terrorist organization overseas directing an operative here to carry out an attack in our own backyard,” Wray said in testimony to the Senate Judiciary Committee.

“And U.S. person queries in particular may provide the critical link that allows us to identify the intended target or build out the network of attackers so we can stop them before they strike and kill Americans,” Wray said.In an effort to curb the intelligence community's ability to access communications of Americans speaking with those being surveilled, some congressional proposals would require the government to first get a warrant. 

It’s something that has been called a red line by the intelligence community and an idea that Wray said would hinder the FBI from acting in real time, including by taking steps to notify Americans who may be the target of attacks. 

“Many of those crucial victim notifications were made possible by our ability to conduct U.S. person queries of our existing 702 collection,” Wray said.

Congress is weighing competing plans for how to reauthorize the law, but of the committee-backed bills, only a proposal from the House Judiciary Committee would require the intelligence community to seek a warrant before reviewing information gathered on Americans through Section 702. 

Still, it’s a requirement backed not only by numerous House Republicans but also by several Democrats as well as privacy rights groups, who have also rallied behind a Senate proposal from Sen. Mike Lee (R-Utah) that would require a warrant.

But Wray said U.S. adversaries are not “tying their own hands behind their back” adding later that the U.S. risks “blinding ourselves.”

“Allowing 702 to lapse or amending it in a way that undermines its effectiveness would be akin to laying bricks to rebuild another pre-9/11 style wall,” he said, nodding to efforts done to increase information sharing among intelligence agencies to help foil terrorist plots.

“What could anybody possibly say to victims’ families if there was another attack that we could have prevented if we hadn't given away the ability to effectively use a tool that courts have consistently deemed constitutional? Because let's not fool ourselves. That's what's at stake with the reauthorization of 702,” he added. 

All of the bills being considered by Congress make significant reforms that would target FBI processes for accessing information collected under Section 702.

Some put in place reforms the FBI has made under their own accord that have vastly decreased Section 702 queries of Americans while provisions considered under by the House Judiciary bill would create criminal penalties for intelligence officers who abuse the tool.

But Lee said he hasn’t seen enough reform from the FBI to feel assured 

“I've expressed concerns to FBI directors appointed by presidents of both political parties in three different presidential administrations. Every darn one of them has told me the same thing. ‘Don't worry about it. We got this taken care of. We got new procedures, it's going to be different now.’ It's never different. You haven't changed,” Lee said.

“We have absolutely no reason to trust you. Because you haven't behaved in a manner that's trustworthy,” he added, irritated that Wray would not disclose what happened to specific employees who misused their powers.

Still, data shows the FBI reforms have made a significant dent in the number of U.S. person queries made, some from a simple change to the database that now requires agents to opt in to searching the database versus automatically doing so.

That reform, along with others, led to a drop in searches impacting Americans from 2.9 million last year to 119,000 this year.

“When you ask, ‘Why are things different this time?’ I will point you again to the findings of the court and the department themselves. Both of which have not been shy about identifying some of the same instances that you cited,” noting that each has found the reforms they made to be “very significant.” 

As time dwindles, Punchbowl News reported Tuesday that Speaker Mike Johnson (R-La.) is no longer considering putting a reauthorization of FISA Section 702 into the defense policy bill amid concerns from some Republicans that it should be a standalone bill.

Politico also reported Tuesday that Johnson in considering bringing both the Judiciary proposal and a coming House Intel plan set to be released Wednesday to the floor as amendments, moving forward only with the proposal that gathers the most votes – a so-called “King of the Hill” floor battle.

That surprised one lawmaker working on a reauthorization plan. 

“Like the survivor approach to legislation to see who gets more votes” the lawmaker said while laughing.