Experts’ battle over surveillance program reforms underscores Congress’s dilemma

A report from a board tasked with overseeing the protection of civil liberties of Americans amid anti-terrorism efforts has caused a stir among the White House, Congress and even the board itself as it evaluates the prospect of renewing America’s warrantless spy program.

The nearly 300-page report from the Privacy and Civil Liberties Oversight Board (PCLOB) released Thursday reveals deep divisions among its five members on how to reform Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for warrantless surveillance of foreigners abroad.

In a departure from precedent, the report did not reach unanimous conclusions about how to update the law, a confusing prospect as a Congress divided on Section 702 stares down an end-of-the-year deadline to renew it. 

The board’s two Republican-appointed members voted against its release, said its findings should not be attributed to them and attached their recommendations in a 56-page annex that read almost like a second report.

But with Section 702, fault lines often don’t fall strictly on party lines, with senior Biden administration officials fretting over the recommendations of the report and the message its divisions would send to a Congress at odds over the policy.

Civil liberties advocates have long viewed Section 702 as a backdoor for gaining access to information on Americans, whose communications get swept up in searches as they speak with those being surveilled abroad. It’s a factor they see as a violation of Fourth Amendment rights against unreasonable searches and a particular risk to Black Americans and other communities of color.

The report, however, includes a third rail for the intelligence community — a suggestion the intelligence community first get a court order before reviewing any intel gleaned on Americans.

Doing so, PCLOB’s majority writes, would offer the “most critical safeguard for Americans’ privacy rights.”

That set off alarm bells within the White House, with the National Security Council calling the idea “operationally unworkable and [one that] would blind us to information already in our holdings that, often, must be acted upon in a time-sensitive way.”

The two Republican members of the board disagreed with that assessment and other suggestions within the report, along with its entire release. The duo argues rather than a blanket court order system, the FBI needs major cultural shifts as well as bolstered compliance requirements to ensure improper searches that would raise political or First Amendment concerns don’t happen in the first place.

“We voted against releasing this report on Section 702 of the Foreign Intelligence Surveillance Act — it was approved only 3 to 2. Therefore, we did not think it appropriate to legitimize its release,” the two members, Richard E. DiZinno and Beth A. Williams, said in a statement.

“The three-Member majority of the Privacy and Civil Liberties Oversight Board produced a deeply flawed report, contrary to the evidence and unmoored from the law,” they continued. “By doing so, the majority has severely diminished the Board’s persuasive authority to inform the debate and influence policy.”

One of the only areas of agreement between the two parties was the value of Section 702 in protecting Americans’ lives underscored the need for its reauthorization.

It’s a key detail as some members on both sides of the aisle in Congress suggest complacency with the prospect of Section 702 authorities lapsing. 

The FBI spied on 119,000 Americans last year, a sharp decline that reflects changes in FBI policy for how the agency accesses the information of citizens swept up in other searches. Still, an unsealed opinion from the Foreign Intelligence Surveillance Court, the entity that would oversee the court order process recommended by the report, recently unsealed an opinion showing a string of abuses, including reviewing information on elected officials. 

And while there’s broad agreement over the need to reform the program, the divergences stem from how aggressive the reforms should be, with some arguing for little more than codifying limits the FBI has put into practice reining in how much Section 702 information they can easily access.

However, the inclusion of a recommendation to get a court order before reviewing information gathered on Americans and permanent residents was celebrated by civil liberties groups that have long pushed for such a requirement.

Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice at New York University, called the report an “ironclad case for requiring a probable-cause order for U.S. person queries.”

“The board’s report gives the lie to the government’s objections to judicial approval. After looking at all the evidence, both public and classified, the board concluded that judicial approval of U.S. person queries is not only workable, it’s critical to safeguarding Americans’ constitutional rights and ending the long string of abuses documented in FISA court opinions,” she said in a statement.

But the Biden administration fretted this week that such a process would cause undue delays in accessing information they may need in real time. 

“This would mean that the executive branch would have in its possession lawfully collected national security information, would have queried it in a lawful way, would know that there is something responsive to that query and would then have to pause, would have to freeze,” a senior administration official said on a call with reporters this week. 

The process would require an application by the Department of Justice, submission to the FISA court, and then a review by a judge before it could be approved.

“The idea that for those weeks — most likely, perhaps longer — we would be sitting on what we know to be responsive national security information of the type that we use to protect lives, protect companies, etc., guard against espionage, that seems to leave us in a really worst-of-all-worlds position, and one that we think will be operationally detrimental,” the official added.

Those opposed to the recommendation for a court order to access intelligence on Americans have taken to describing the product as two reports given the divide between the members.

That also prompted fear from the White House about the message the report sends to a Congress where both those on the left and the right have opposed reauthorizing Section 702 without significant reforms dictating how it can use information gathered on Americans. 

“The fact that there’s such a division in the face of the Hill urging the opposite, I think first of all underscores just how fractured it is, but it also I think makes it hard for the Hill to know exactly what to do with two competing reports,” the official said.

The House Intelligence Committee wrote a bipartisan letter to the board in April asking for bipartisan guidance.

“We also urge the Board to reach consensus on as many recommendations as possible, since it is those recommendations rooted in reasonable bipartisan compromise that have the greatest likelihood of being considered by our Committee as part of our reauthorization and reform effort,” Chairman Mike Turner (R-Ohio) and ranking member Jim Himes (D-Conn.) wrote in the letter.

But Sharon Franklin, the chairwoman of the board, said the majority felt obligated to display their findings despite the division.

“Staying silent is not a responsible option. The question of whether and how to renew Section 702 is one of the most critical issues facing Congress right now. Members of Congress, like our board members, have a range of deeply held views on this subject. Our agency, by design, is headed by a five-member bipartisan Board. Our governing statute explicitly contemplates that Board Members will not always agree in their assessments, and our rules provide for inclusion of separate statements as part of our reports, to ensure that all views are captured,” she said in a statement.

“It is a valuable feature of our agency that we are able to present a full spectrum of viewpoints to inform Congress as it debates reauthorization of this surveillance program.”

A senior congressional aide took issue with the board moving ahead with its release despite such deep divisions.

“Taking a cursory look at this report, you wouldn’t know that it was absolutely not a unanimous product,” they said.

“You see in this report a litany of politically charged recommendations. This includes recommendations which directly contradict the recent President’s Intelligence Advisory Board and the Intelligence Oversight Board report issued in July, where, for example, the PIAB assessed that a requirement similar to that within Recommendation 3 would prevent intelligence agencies from discovering threats to the homeland,” the aide said, noting the section of the report recommending securing a court order to review intelligence on Americans.

Himes, in a statement, said Congress would use the recommendations to the extent they align with other reports presented this year.

“Although the PCLOB members were unable to reach bipartisan agreement on any single recommendation, I expect the final bill Congress crafts will include provisions that reflect recommendations made by the PCLOB, the President’s Intelligence Advisory Board, and other stakeholders,” he said.

Jamil Jaffer, who worked for the House Intelligence Committee as a Republican staffer the first time it was reauthorized by Congress, said the report was a deviation both from a practice of offering bipartisan guidance as well as past recommendations on how to operate.

“The PCLOB was established to provide well-informed, consensus recommendations to both protect the privacy and civil liberties of Americans, while also ensuring that the government is also able to protect those very citizens, and in ignoring the consistent advice of every national security leader in the current administration and the four that preceded it as well as the recommendations of the 9/11 Commission, the three person PCLOB majority has utterly failed in its responsibility,” he said.

—Updated Monday at 5 p.m.