US asks court to reauthorize disputed surveillance program for one year

The Biden administration is in the process of extending a controversial warrantless surveillance program until April 2025, according to officials familiar with the matter.

The administration’s decision, which requires court approval, appeared likely to reignite an already turbulent debate in Congress over its fate. The program has muddled the usual partisan lines, with members of both parties on both sides seeing the program as a potential abuse of civil liberties or as necessary to protect national security.

The law underlying the program, Section 702, authorizes the government to collect the communications of foreigners abroad who are targeted for intelligence purposes — even if those targets are talking to or about Americans. The National Security Agency collects the information from American companies such as Google and AT&T, and without individualized arrest warrants.

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

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

The legislative paralysis has brought the calendar to a time when the Justice Department and the Office of the Director of National Intelligence normally ask the Foreign Intelligence Surveillance Court each year to renew the program.

The law essentially requires the executive branch to ask the court to extend the program at least a month before it expires to ensure there is no funding gap. Current orders for the program expire on April 12, and officials have said they are adding another week to give communications companies time to adapt their systems to any changes.

The law also says the program can continue as long as the court’s annual orders remain in effect — even if the underlying statute expires in the meantime.

Matthew G. Olsen, the assistant attorney general for national security, described the move to file the request with the court in early March to extend the program as “consistent with our annual standard practice.”

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

“It is our responsibility,” Mr. Olsen said, to seek authorization again “to prevent a dangerous gap in collection and protect the security of the country.”

Another Justice Department official said congressional leaders had been notified of the measure and that the filing would call for a full one-year extension of the program.

Mr. Olsen also emphasized that if and when Congress reauthorizes Section 702, “we are committed to incorporating any additional statutory reforms Congress implements on an accelerated timeline and returning to the court to seek early recertification.” ”

Still, the prospect of orders that would keep the program from expiring in April could ease some of the pressure on lawmakers to act. It opens the door to leaving the next Congress, which will take place after the November elections, to find a solution.

Elisabeth Goitein from the Brennan Center for Justice at New York University School of Law, which has urged Congress to require officials to obtain arrest warrants before searching for information about Americans in the messages distributed by the program. the government’s move was depicted as cynical. The government, she added, did not need to apply for a full-year extension.

“This shows the administration’s total disregard 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 is not trying to prevent a divide; it is trying to slip through an additional year of oversight without congressional approval.”

It was not clear whether the government has already informally begun the process to have the program reauthorized. under normal circumstancesprovides a draft copy of the intended application approximately an additional month before it is formally filed, so that the court’s legal staff can review the materials and ask questions that may lead to adjustments.

Civil libertarian-minded lawmakers have long raised concerns about Section 702’s effect on Americans’ privacy rights. This cycle is amplified by the far-right Republican faction, which has aligned itself with former President Donald J. Trump’s hostility toward the FBI.

Much of the debate focused on the fact that under current rules, subject to certain restrictions, intelligence analysts and FBI agents are allowed to search the raw database of Section 702 intercepts for U.S. information. If there is a hit, officials could read and use private messages from Americans collected without a warrant.

In recent years, FBI. Officials have repeatedly conducted searches that were later found to be inadequately justified or defined too broadly. Problematic searches include searches using the identifying information of a lawmaker, Black Lives Matter protesters and suspects in the January 6 Capitol riot.

In response, the FBI has tightened its systems since 2021. Mr. Olsen said the filing asked the court to ensure that the new orders “include the FBI’s ongoing reforms to strengthen privacy protections.”

But those pushing for a review want to go further by requiring the government to obtain a warrant before seeking information on Americans. National security officials say this would cripple the program’s effectiveness and place the country at unnecessary risk, a position the Biden administration has endorsed.

Executive branch officials have said they still want Congress to extend Section 702 this year, warning that allowing it to operate under an expired statute could lead to legal challenges at the fringes. For example, it is not clear whether the court would have the authority to force a new communications provider to participate in the program if the underlying law has lapsed.

Joshua Geltzer, the National Security Council’s legal adviser in the White House, painted now going to surveillance court as “business as usual” while pledging that the Biden administration would continue to work with Congress to reauthorize the law .

“Congress moved in December to expand Section 702, which maintained this critical intelligence-gathering authority,” 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 otherwise would be an anomaly and even an abdication of our responsibility to use the law Congress has enacted to protect Americans.”