A board of intelligence advisors warned failure to reauthorize Section 702 of the Foreign Intelligence Surveillance Act could be “one of the worst intelligence failures of our time,” while also recommending more limits on the FBI’s use of the intelligence database and more oversight in a report released Monday.
The President’s Intelligence Advisory Board's review of Section 702 of the Foreign Intelligence Surveillance Act comes as officials urge Congressional reauthorization as the provision sunsets at the end of the year, but as the provision has faced bipartisan scrutiny from lawmakers.
Section 702 allows targeted intelligence collection of non-Americans outside the U.S. and does not allow targeting of a U.S. person. However, it can incidentally include information concerning a U.S. person.
The report states, "After careful review, the Board strongly believes that Section 702 authorities are crucial to national security and do not threaten civil liberties, so long as the requisite culture, processes, and oversight are in place."
The report outlined thirteen recommendations finding ‘extensive misunderstandings’ about Section 702.
It included not allowing the FBI to use queries for U.S. persons for non national security related crimes, and more training on what foreign intelligence entails. A senior administration official said the FBI conducts less than two dozen of these types of searches a year.
The advisory board found inappropriate use from the FBI of 702 authorities but not evidence of “willful misuse” for political purposes. The report noted a DOJ audit in 2021 found a “large number of noncompliant incidents” which included those arrested during January 6th, and directed reforms. Administration officials said reforms in 2021 lead to a 93 percent drop in U.S. person queries conducted by the FBI and more compliance.
The report also recommended the agency designate a compliance officer and create a culture of compliance.
The FBI noted in a statement the report “… recognizes that the reforms put in place by the FBI have yielded substantial compliance improvements. We agree that Section 702 should be reauthorized in a manner that does not diminish its effectiveness, as well as reassures the public of its importance and our ability to adhere rigorously to all relevant rules.”
The advisory board also recommended establishing a standard for pre-approval across all agencies for U.S. persons inquiries, agreement on standards for accountability, a zero tolerance policy for willful misconduct and codifying principles in executive orders.
It did not recommend requiring a warrant for each U.S. person query.
National Security Advisor Jake Sullivan and Principal Deputy National Security Advisor Jon Finer stated:
“We agree with the unanimous conclusion reached by this group of independent, deeply experienced experts that failure to reauthorize Section 702 could be 'one of the worst intelligence failures of our time.' We also agree with the Board’s recommendation that Section 702 should be reauthorized without new and operationally damaging restrictions on reviewing intelligence lawfully collected by the government and with measures that build on proven reforms to enhance compliance and oversight, among other improvements."
Nearly 60 percent of articles in the President’s Daily Brief include some information from 702, according to a senior intelligence official.
Officials say Section 702 helps inform decisions and protect against threats, including counter-terrorism efforts, cyber activity and behavior from China and Russia.
Administration officials said the authority has helped understand Russian atrocities in Ukraine, the flow of fentanyl, locate terrorists and understand threats posed by the PRC.
“I think our view is that this provision is just too important to fail,” Josh Geltzer, Deputy Homeland Security Advisor, said.
Geltzer said there are findings they “absolutely embrace.”
“One is just the sheer value of collection under 702. And consequently, the critical nature of seeing this provision of law reauthorized in a way that preserves its full efficacy. The second piece of it the board weighed in on unanimously I might emphasize this, but a second piece of the board weighed in on quite emphatically is the value of those queries associated with U.S. persons, and how infeasible how operationally detrimental it would be if some new requirements were placed on the government to go to a court before sifting, sorting, organizing that information in a way that maximizes its utility,” he said.
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