With just six weeks until the end of the year, the Biden administration is running out of time to win the reauthorization of a spy program it says is vital to preventing terrorism, catching spies and disrupting cyberattacks.
The tool, Section 702 of the Foreign Intelligence Surveillance Act, will expire at the end of December unless the White House and Congress can cut a deal and resolve an unusually vexing debate that has yielded unlikely alliances at the intersection of privacy and national security.
Without the program, administration officials warn, the government won’t be able to collect crucial intelligence overseas. But civil liberties advocates from across the political spectrum say the law as it stands now infringes on the privacy of ordinary Americans and insist that changes are needed before the program is reauthorized.
“Renewing this law before it expires is among the most consequential national security decisions we face as a country,” Assistant Attorney General Matthew Olsen, the Justice Department’s top national security official, said at an event last month.
The law, enacted in 2008, permits the U.S. intelligence community to collect without a warrant the communications of foreigners overseas suspected of posing a national security threat. Importantly, the government also captures the communications of American citizens and others in the U.S. when they’re in contact with those targeted foreigners.
In making the case for the law’s renewal, the Biden administration over the last year has cited numerous instances in which intelligence derived from Section 702 has helped thwart an attack, including an assassination plot on U.S. soil, or contributed to a successful operation, such as the strike last year that killed al Qaeda leader Ayman al-Zawahri.
National security officials have said that 59% of articles in the president’s daily brief contain Section 702 information. They also point to the need for the program at a time when Israel’s war with Hamas has led to elevated concerns about attacks inside the U.S.
But while both sides of the debate are in broad agreement that the program is valuable, they differ in key ways on how it should be structured, creating a stalemate as the deadline approaches and as Congress is consumed by a busy year-end agenda, including a government shutdown deadline and disputes over border security and war spending. The White House has already dismissed as unworkable the one known legislative proposal that’s been advanced.
Another complicating factor for the administration to navigate: the coalition of lawmakers skeptical of government surveillance includes both privacy-minded liberal Democrats and Republicans deeply supportive of former President Donald Trump who still regard the intelligence community with suspicion over the investigation of ties between Russia and the 2016 Trump campaign.
Despite the clear challenges in reaching a compromise, the last-minute scramble between the White House and Congress has come to be expected each time the government’s surveillance powers are set to be renewed. This particular program was last renewed in January 2018 following a splintered vote in Congress and signed into law by Trump, who in a statement praised the tool’s value for having “saved lives” but also cheered a new requirement that was meant to protect privacy.
“A lot of these in the past have gone up to the brink. There is a history here of this brinksmanship when you have these statutory sunsets,” said Jamil Jaffer, founder and executive director of the National Security Institute at George Mason University’s law school and a senior Justice Department official at the time the law was created.
• Associated Press writer Farnoush Amiri contributed to this report.
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