In the Senate, Biden’s spy pitch falls on deaf ears

The Biden administration’s latest bid to convince lawmakers to renew a soon-to-expire foreign surveillance power without significant new privacy safeguards is off to a rough start.

The problem? The administration keeps trying to show lawmakers the value of the spy tool, while Congress is fixated on cleaning up the repeated abuses that have occurred under it.

“I will only support the reauthorization of Section 702 of Foreign Intelligence Surveillance Act if there are significant reforms,” Sen. Dick Durbin, chair of the Senate Judiciary Committee, said Tuesday during a panel hearing on oversight of the program.

The law allows U.S. spy agencies to collect the text, email and other digital communications of foreigners located abroad. But a series of recently documented abuses involving Americans whose data has been swept up into the program has led both Republicans and Democrats to push for sweeping changes ahead of the statute’s year-end expiration date.

“I have raised significant concerns in hearing after hearing after hearing about FISA and its shocking disregard for Americans’ constitutional rights and civil liberties,” Sen. Mike Lee (R-Utah) said at the hearing.

And year after year, Lee continued, he gets the same dismissive answer from the intelligence community: “These are not the droids you’re looking for.”

The hearing before the Senate Judiciary Committee represents a key step in the administration’s effort to dissuade Congress from making major changes to the surveillance tool. The Committee shares jurisdiction over the law with the Senate Intelligence panel, meaning it is likely to play a strong role in any effort to reup it.

Witnesses representing the Justice Department, FBI, CIA, NSA and Office of the Director of National Intelligence dedicated much of their testimony Tuesday to arguing that the surveillance program is vital to U.S. national security.

“The information the CIA derives from FISA Section 702 collection is quite simply indispensable,” said David Cohen, deputy director of the CIA.

“Without it our ability to preserve the nation’s security will be significantly impaired,” added George Barnes, the deputy director of the NSA.

The officials also sought to buttress their case by declassifying new information about how the program has played a central role in thwarting drug trafficking and foreign cyberattacks.

But lawmakers on the panel were far more concerned about the privacy abuses that have occurred under the law — the vast majority of which concern the FBI’s ability to warrantlessly sift through data collected under the program for information on Americans.

“I’ve been a constant supporter of 702, and it’s very frustrating years into the process to have these errors,” said Sen. Sheldon Whitehouse (D-R.I.).

Many of the abuses discussed Tuesday occurred prior to the FBI’s implementing a series of new compliance fixes in 2021 — a point administration officials were quick to note.

The administration is prepared to codify those changes into law, said FBI deputy director Paul Abbate. The measures, which include basic steps like requiring FBI officials to opt-in to searches within the database, have led to steep decline in those controversial searches, according to intelligence community oversight reports declassified in April.

Abbate also revealed at the hearing that the FBI is instituting two further reforms: a three-strike policy to discourage officers from conducting needless searches in the database, and a framework for incorporating FISA oversight into senior officials’ performance reviews.

But most lawmakers on the panel expressed interest in more sweeping reforms, above all a warrant requirement to limit the FBI’s ability to search through the 702 database for information on Americans.

“We’ve got an opportunity this year to make reforms, and we must do it,” Lee, a supporter of the warrant requirement, said Tuesday. Durbin added: “I’ve got to see more” than internal FBI compliance fixes, and said his support for the program is contingent on the warrant.

The administration witnesses Tuesday tried — but evidently failed — to convince lawmakers that’d be an unwise change.

“Unduly limiting the FBI’s ability to access lawfully collected information … will set us back decades,” DOJ assistant attorney general Matt Olsen said. The warrant, he added, “would put the nation at grave risk.”