Attorney General Merrick Garland made an impassioned plea Wednesday for Congress to renew a controversial government spying authority, warning that if the “Section 702” powers go away the U.S. will suffer in its ability to keep track of China’s efforts to undermine the country.
Mr. Garland acknowledged problems with Section 702, a part of the Foreign Intelligence Surveillance Act that has been the subject of abuses — including an attempt to query information on a sitting member of Congress.
But he said anyone seeking to send a message to the Justice Department by blocking renewal is playing a dangerous game.
“This is what we need in order to fight the Chinese, particularly,” he said. “We’re getting information about their cyber attacks, their efforts to exfiltrate information, their efforts to export our military information.”
He said the spying powers can also help the U.S. protect the Chinese dissidents targeted by Beijing for retaliation.
Mr. Garland’s defense came in response to Rep. Mike Garcia, a California Republican who said the Justice Department has lost the trust of lawmakers and shouldn’t expect an easy renewal of Section 702.
He pointed out that he sits on the House intelligence committee, so he’s familiar with what Section 702 produces, but he doesn’t “trust the Department of Justice, the FBI and other agencies to use FISA for what it is intended for.”
“Right now I don’t believe the majority of Congress — and it may be a very slim percentage of Congress — supports are renewal of FISA,” Mr. Garcia said.
Section 702 authorizes the government to scoop up electronic communications from service providers here in the U.S. It’s supposed to be aimed at non-Americans located outside the U.S., though Americans’ communications are swept up.
Critics say that creates opportunities for “backdoor” searches that can pry into those communications without a warrant.
Section 702 is slated to end on Dec. 31, unless Congress renews it.
Reauthorization has been a fairly routine exercise in the past, but revelations about the FBI’s struggles, including lying in a court filing in order to justify surveillance of a Trump campaign figure under a different part of FISA, have soured prospects this year.
A December report revealing that a Section 702 query was run on the name of a member of Congress has also hurt prospects.
Aware of the headwinds, the Biden administration is making a concerted effort to win renewal.
Mr. Garland told lawmakers he is following through on new guardrails with the program, including better controls on how searches of the data are done.
He said there’s been a reduction of nearly 90% in queries on Americans.
He tried to convey how much of a role Section 702 plays in U.S. security by describing his own daily “all-threats” briefing. He said an “extraordinarily large percentage” of that briefing comes from 702 data collection.
“The consequences of removing 702 is not going to punish the Justice Department,” he said. “It’s going to punish the American people in the most direct way possible. That includes the threats we get from Iran, the threats we get from Russia, the threats we get from North Korea.”
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