U.S. to Ask Court to Reauthorize Disputed Surveillance Program for a Year

Admin

February 29

The Biden administration is moving to extend a disputed warrantless surveillance program into April 2025, according to officials familiar with the matter.

The decision by the administration, which requires asking for court approval, seemed likely to roil an already turbulent debate in Congress over its fate. The program has scrambled the usual partisan lines, with members of both parties on each side of seeing the program as potentially abusive of civil liberties or as necessary for protecting national security.

The law that undergirds the program, Section 702, authorizes the government to collect the communications of foreigners abroad who have been targeted for intelligence purposes — even when those targets are talking with or about Americans. The National Security Agency gathers the information from American companies like Google and AT&T, and without individualized warrants.

Enacted in 2008, the law legalized a form of the once-secret Stellarwind program, which the Bush administration created after the Sept. 11, 2001, terrorist attacks. The government has said it uses the law to gather foreign intelligence, including information about spies, hackers and terrorists.

The law had been set to expire in December, but Congress voted to extend it until April 19 to give itself more time to debate proposed changes. Lawmakers have yet to reach a consensus, and this month, a plan to hold a floor vote on the matter collapsed in the Republican-controlled House before a two-week recess.

The legislative paralysis has brought the calendar to the moment when the Justice Department and the Office of the Director of National Intelligence each year normally ask the Foreign Intelligence Surveillance Court to issue new certifications allowing the program to operate.

The law essentially requires the executive branch to ask the court to renew the certifications at least a month before they lapse to ensure there is no gap in coverage. The current orders governing the program expire on April 12, and officials have said they build in another week to give communications companies time to adjust their systems to any changes.

The law also says the program can keep going for the duration of annual orders from the court — even if the underlying statute expires in the meantime.

Matthew G. Olsen, the assistant attorney general for national security, portrayed the move to submit the request to the court for renewing the certifications in early March as "consistent with our standard annual practice."

He added that the department was nevertheless committed to working closely with Congress to reauthorize the law before it expires.

"It is our responsibility," Mr. Olsen said, to seek reauthorization "to avoid a dangerous gap in collection and to protect the nation's security."

Another Justice Department official said that congressional leaders had been told of the move and that the application would request a full one-year extension of the program.

Mr. Olsen also stressed that if and when Congress reauthorizes Section 702, "we commit to incorporating any additional statutory reforms Congress enacts on an expedited timeline and to returning to the court to seek early recertification."

Still, the prospect of orders that would ensure the program does not lapse in April could relieve some of the pressure on lawmakers to act. It opens the door to leaving it to the next Congress, which will be seated after November's election, to find a resolution.

Elizabeth Goitein of the Brennan Center for Justice at New York University School of Law, who has urged Congress to require officials to obtain warrants before searching for information about Americans in the messages swept up by the program, portrayed the government's move as cynical. The government, she added, did not have to seek an extension that lasted a full year.

"This shows the government's utter contempt for the role of Congress and the democratic process when it comes to FISA and Section 702," she said, referring to the Foreign Intelligence Surveillance Act. She added, "The government isn't trying to prevent a gap; it's trying to sneak through an additional year of surveillance without congressional approval."

It was not clear whether the government has already informally started the process of getting the program reauthorized. Under normal circumstances, it provides a draft copy of its intended application about an additional month before formally submitting it so that the court's legal staff can review the materials and raise questions that might result in tweaks.

Civil libertarian-minded lawmakers have long raised concerns about the effect of Section 702 on Americans' privacy rights. This cycle, they have been bolstered by the hard-right faction of Republicans that has closely aligned itself with former President Donald J. Trump's hostility to the F.B.I.

Much of the debate has centered on the fact that under the present rules, subject to certain restrictions, intelligence analysts and F.B.I. agents may search the raw database of Section 702 intercepts for Americans' information. If there is a hit, then officials can read and use private messages of Americans that were collected without a warrant.

In recent years, F.BI. officials have repeatedly conducted searches that were later found to have lacked sufficient justification or to have been too broadly defined. Problematic queries have included searches using the identifiers of a lawmaker, Black Lives Matter protesters and Jan. 6 Capitol riot suspects.

In response, the F.B.I. has tightened its systems since 2021. Mr. Olsen said the application asked the court to ensure that the new certifications would incorporate the F.B.I.'s "ongoing reforms to strengthen privacy protections."

But those pushing for overhaul want to go further by requiring the government to obtain a warrant before searching for information about Americans. National security officials say that would cripple the program's effectiveness and unnecessarily endanger the country, a view the Biden administration has endorsed.

Officials in the executive branch have said they still want Congress to extend Section 702 this year, warning that keeping it operating on an expired statute could lead to legal problems on the fringes. It is not clear, for example, whether the court would have jurisdiction to compel a new communications provider to participate in the program if the underlying law has lapsed.

Joshua Geltzer, the legal adviser to the National Security Council at the White House, portrayed going to the surveillance court now as "business as usual," while pledging that the Biden administration would continue to work with Congress to reauthorize the law.

"Congress acted in December to extend Section 702, which maintained this critical authority for intelligence collection," Mr. Geltzer said. "The executive branch is now acting on that, in the usual way, at the usual time in the reauthorization cycle. To do anything else would be an anomaly and indeed an abdication of our responsibility to use the law Congress extended for the protection of Americans."