WASHINGTON — FBI Director Christopher Wray on Tuesday called for reauthorization of a U.S. government surveillance tool that expires at the end of this year, warning Senate lawmakers that there would be “devastating” public safety consequences if the program were allowed to expire.
At issue is Section 702 of the Foreign Intelligence Surveillance Act, which allows the U.S. government to collect communications from targeted foreign nationals outside the United States without a warrant. Law enforcement and intelligence officials consider the program essential for combating terrorist attacks, cyber intrusions, espionage and other foreign threats.
The program, created in the wake of the September 11, 2001, attacks, is set to expire at the end of this month unless Congress decides to reauthorize it. But both Republican and Democratic lawmakers have steered clear of renewing the program in its current form, recommending a slew of reforms in competing legislative proposals aimed at better protecting civil liberties that are vying for support in the coming weeks.
The thorny path to reauthorization was laid bare during Tuesday's hearing, when lawmakers from both parties questioned Wray, sometimes aggressively, about periodic abuse of the program by FBI employees seeking information on Americans. While the program only allows surveillance of foreigners who are outside the US, it can also capture the communications of US citizens and others in the US when those people are in contact with the targeted foreigners.
Senator Mike Lee, a Republican from Utah, said that during his 13 years on the committee he had pressured multiple FBI directors about civil liberties violations related to the surveillance program and had repeatedly received false reassurances about the reforms being pursued. were implemented.
“Every one of them has told me the same thing: 'Don't worry, we've got this sorted, we have new procedures, it'll be different now,'” Lee said. “It's never different. You have not changed.”
He added: “We have no reason to trust you because you have not behaved in a trustworthy manner.”
The fact that Wray devoted a significant portion of his prepared remarks to the Senate Judiciary Committee to this issue underscores its importance to the FBI, especially at a time when the war between Israel and Hamas has raised heightened concerns about the potential for extremist violence on American soil. and has contributed to threats being at a “completely different level” since the October 7 attacks.
“I think it would be reckless at best and dangerous and irresponsible at worst to blindside us by dropping 702 or modifying it in a way that diminishes its effectiveness,” Wray said.
Calling the authority indispensable, he told the committee, “702 allows us to stay one step ahead of foreign actors outside the United States who pose a threat to national security. And the expiration of our 702 authorities would be devastating to the FBI's ability to protect Americans from these threats.”
Wray, who took over as director in 2017, said what made the current climate unique is that “so many of the threats are all major at the same time.”
But the 702 program has come under scrutiny over the past year following revelations that FBI analysts improperly searched its intelligence database, including for information on people involved in the Jan. 6, 2021 riot US Capitol and the Racial Justice Protests of 2020. .
These concerns have united longtime vocal civil liberties advocates, including Democratic Sen. Ron Wyden of Oregon, as well as Republican supporters of former President Donald Trump, who remain angry about surveillance mistakes made during the 2016 Russia investigation.
Wray and the White House have pushed back against the idea that the FBI should be required to obtain a warrant before searching the intelligence database for information about Americans and others within the FBI. The FBI director said such a requirement would be both legally unnecessary and the agency in an effort to disrupt fast-moving national security threats.
If a warrant requirement is the chosen path, Wray said, “What if there was a terrorist attack that we could have prevented but couldn't sustain because the FBI under 702 was deprived of the ability to look at important information? already in our possession?”
A bipartisan proposal from Republican Sen. Marco Rubio and Democratic Sen. Mark Warner, the two leaders of the Senate Intelligence Committee, would impose a more limited requirement, requiring a court order for when the FBI wants to question Americans for evidence finding a crime, but not for when the FBI searches the intelligence database for foreign intelligence information.
Sen. Chris Coons, a Delaware Democrat who said he had not yet decided how he would vote, asked Wray whether that narrower proposal might be more acceptable. The FBI director said this proposal could provide a viable path forward, but noted that database searches for the sole purpose of finding evidence of a crime were very rare.
Senator Dick Durbin of Illinois, the Democratic chairman of the Senate Judiciary Committee, summed up the issue by telling Wray that while “there was no doubt” that Section 702 was a “critical tool for foreign intelligence collection,” he had significant would encourage reforms to protect the privacy of “innocent Americans.”