An intensive drive by right-wing Republicans in Congress to vilify the F.B.I. with charges of political bias has imperiled a program allowing spy agencies to conduct warrantless surveillance on foreign targets, sapping support for a premier intelligence tool and amplifying demands for stricter limits.
The
once-secret program — created after the 9/11 attacks and described by
intelligence officials as crucial to stopping overseas hackers, spy services
and terrorists — has long faced resistance by Democrats concerned that it could
trample on Americans’ civil liberties. But the law authorizing it is set to
expire in December, and opposition among Republicans, who have historically
championed it, has grown as the G.O.P. has stepped up its attacks on the
F.B.I., taking a page from former President Donald J. Trump and his supporters.
“There’s
no way we’re going to be for reauthorizing that in its current form — no
possible way,” said Representative Jim Jordan, Republican of Ohio, a key ally
of Mr. Trump’s who is leading a special House investigation to into the
“weaponization” of government against conservatives. “We’re concerned about
surveillance, period.”
At issue
is a program that allows the government to collect — on domestic soil and
without a warrant — the communications of targeted foreigners abroad, including
when those people are interacting with Americans. Leaders of both parties have
warned the Biden administration that Congress will not renew the law that
legalized it, known as Section 702, without changes to prevent federal agents
from freely searching the email, phone and other electronic records of
Americans in touch with surveilled foreigners.
Since
the program was last extended in 2018, the G.O.P.’s approach to law enforcement
and data collection has undergone a dramatic transformation. Disdain for the
agencies that benefit from the warrantless surveillance program has moved into
the party mainstream, particularly in the House, where Republicans assert that
the F.B.I.’s investigations of Mr. Trump were biased and complain of a broader
plot by the government to persecute conservatives — including some of those
charged for storming the Capitol on Jan. 6, 2021 — for their political beliefs.
They argue that federal law enforcement agencies cannot be trusted with
Americans’ records, and should be prevented from accessing them.
“You
couldn’t waterboard me into voting to reauthorize 702,” said Representative
Matt Gaetz, Republican of Florida, who backed the program in 2018. “These 702
authorities were abused against people in Washington on January 6 and they were
abused against people who were affiliated with the B.L.M. movement, and I’m
equally aggrieved by both of those things.”
Congress
created Section 702 of the Foreign Intelligence Surveillance Act in 2008, and
has renewed the program twice since, largely thanks to the overwhelming support
of Republican lawmakers. But significant turnover on Capitol Hill has brought a
new generation of Republicans less protective of Washington’s post-9/11
counterterrorism powers, and about half of House Republicans have never cast a
vote on it.
“This
will be a first impression for many of them,” said Representative Darin LaHood,
Republican of Illinois, a supporter of the program who is part of the
Intelligence Committee’s six-member working group trying to determine how
Congress can restrict the program without hamstringing it. “The thought that
702 and FISA just focused on terrorism — I think that narrative has to be
changed. We need to focus on China, we need to focus on Russia, we need to
focus on Iran and North Korea.”
The
Biden administration has been making a similar case to lawmakers, appealing to
them to renew the Section 702 program, which Jake Sullivan, the president’s
national security adviser, has called “crucial” to heading off national
security threats from China, Russia, cyberattacks and terrorist groups.
But
far-right lawmakers have embarked on a louder and more politically loaded
effort to fight the measure. They have seized on official determinations that
federal agents botched a wiretap on a Trump campaign adviser and more recent
disclosures that F.B.I. analysts improperly used Section 702 to search for
information about hundreds of Americans who came under scrutiny in connection
with the Jan. 6 attack and the Black Lives Matter protests after the 2020
murder of George Floyd by a police officer.
Justice
Department and F.B.I. officials have attempted to defend themselves from
lawmakers’ outrage over those revelations, pointing to steps they have taken to
restrain the opportunities agents are permitted to examine the communications
of Americans collected under Section 702. They credit those changes with
reducing the number of such queries from about 3 million in 2021 to about
120,000 last year.
But
their opening salvos have not swayed skeptical Democrats whose support the
Biden administration is expected to need for an extension of the spying
program.
In
recent years, Capitol Hill has welcomed several new Democrats with backgrounds
in national security who favor extending the program. But convincing others is
a challenge, as most members of the party — including Representative Hakeem
Jeffries of New York, the minority leader — have voted against extensions. Even
President Biden voted against the law to legalize the program in 2008, when he
was a senator.
Democratic
supporters have been adamant that any reauthorization will have to include
significant limitations on how and when agents may comb their databases for
information on Americans, in the hopes that those safeguards will allay
lawmakers’ longstanding concerns about the potential for abuses.
“We’ve
been very clear with the administration that there is not going to be a clean
reauthorization — there’s no path to that,” said Representative Jason Crow,
Democrat of Colorado, who is also part of the Intelligence Committee’s Section
702 working group.
He
suggested that the restrictions would include limits on when agents could query
their databases for information about Americans, and requirements that warrants
be obtained in some circumstances.
Representative
Chris Stewart, Republican of Utah, who is a member of the Intelligence
Committee’s working group and the weaponization panel, said some members of his
party might be persuaded to reauthorize the program with “deep reforms.”
“But
there’ll still be a number who are just never going to authorize this,” Mr.
Stewart added. “Being on the weaponization committee, I’ve seen insights into
some of their thinking — and there are a number of them who just won’t ever
come on board.”
The
administration has signaled it is open to discussing other changes in theory.
But officials from the F.B.I. and Justice Department pushed back this month on
specific proposals during their first public appearance on Capitol Hill to
discuss the matter, rankling lawmakers.
“I don’t
have any doubt about the foreign intelligence value of this, but the U.S.
person aspect of this is really concerning to the Congress,” Senator Jon
Ossoff, Democrat of Georgia, told the officials during a hearing of the
Judiciary Committee. “I don’t think you’ve effectively made the case that there
shouldn’t be a warrant requirement.”
The
committee chairman, Senator Richard Durbin, Democrat of Illinois, did not find
the changes to be sufficient. “If the reforms that you’ve mentioned in 2021 and
2022 are the only reforms that you’re bringing to this committee as we discuss
the future of Section 702, I’ve got to see more,” he told agency officials.
***The
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