Editor’s Note: This article, originally published on March 2, has been updated to reflect the testimony of top intelligence leaders before the Senate Select Committee on Intelligence on March 8.

U.S. Attorney General Merrick Garland testified on March 1 for the first time before the new Congress at a Senate Judiciary Committee hearing, “Oversight of the Department of Justice.” Buried in wide-ranging testimony was an exchange about the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA). A week later, on March 8, during a rare public Senate Select Committee on Intelligence hearing, “Worldwide Threats,” Director of National Intelligence Avril Haines and other intelligence community leaders reaffirmed Section 702’s importance amidst discussion on great power competition, the origins of the coronavirus pandemic, and nuclear proliferation. Just Security recently ran a series featuring pieces by Elizabeth Goitein and Ashely Gorski on surveillance under the Act, and published an article on the topic by George Croner, who has criticized proposed FISA reforms.

The Biden administration has amplified efforts to push for Section 702 reauthorization prior to its expiration on December 31, 2023. In a January keynote speech at the Privacy and Civil Liberties Oversight Board Public Forum, National Security Agency Director General Paul M. Nakasone underscored the important role Section 702 plays in allowing the U.S. government to collect intelligence on foreign government’s plans and strategic intentions. On Feb. 28, National Security Adviser Jake Sullivan released a statement reaffirming that the Biden administration considers the reauthorization of Section 702, along with other expiring FISA provisions, to be a “top priority.” That same day, Garland and Haines sent a letter to Senate and House leadership regarding Title VII of FISA, and in particular Section 702. The letter outlines the statute’s role in ensuring national and cyber security, and strongly urges its prompt reauthorization.

Garland Testifies Before the Senate Judiciary Committee

In his congressional testimony on March 1, Garland outlined his reasons for supporting reauthorization. He stated that “an enormously large percentage of the threats information” that he receives daily “all threats” briefings with the FBI and the Department of Justice (DOJ)’s National Security Division (NSD) stem from intelligence collected under Section 702 authority. Examples he gave include materials relevant to threats related to Ukraine, as well as to threats by foreign terrorist organizations and other state adversaries, such as China, North Korea, Iran, and Russa. Additionally, he credited Section 702 collection with contributing to the DOJ’s cybersecurity enforcement efforts, including by providing information vital to ransomware investigations and to obtaining decryption keys. He concluded that, without Section 702, “we would be intentionally blinding” both the United States and our allies “to extraordinary danger.”

In support of Garland’s testimony, Sen. Richard Blumenthal (D-CT) said that “without going into any classified information,” Section 702 “was instrumental in preventing major catastrophic aggression against our nation and also helping our allies like Ukrainians with intelligence that was extremely critical to pushing back the Russians.” Sen. Mike Lee (R-UT), meanwhile, cited skepticism of the Department’s independence — a common refrain in Republican questioning of Garland during the hearing—as a basis to withhold reauthorization until the Department undertook “major reforms.” He asserted that “the current standard for a warrantless backdoor search of the content of communications of American persons is reasonably likely to return evidence of a crime.” Referencing a recently declassified report from the Office of the Director of National Intelligence (ODNI), Lee expressed concern about non-compliant searches, including “searches of prospective FBI employees, members of a political party, individuals recommended to participate in the FBI citizens’ academy, journalists, and even a Congressman.”

In contemporaneously submitted written testimony and responses to senators’ queries for the record, Garland and DOJ again highlighted that Section 702 surveillance is crucial to the state’s ability to gather foreign intelligence information about non-U.S. persons reasonably believed to be outside the United States. It emphasized the guardrails in place to prevent abuses, including “robust targeting, minimization, and querying procedures to protect the privacy and civil liberties of U.S. persons.” DOJ further underscored its corrective measures to strengthen accuracy in FISA applications through new mechanisms, including providing NSD attorneys with information that could “undermine a probable cause determination” and enforcing new training requirements for FBI personnel and DOJ lawyers. Lastly, oversight of FISA applications has been expanded to include “completeness reviews” intended to ensure the Foreign Intelligence Surveillance Court (FISC, or colloquially, the “FISA Court”) is provided with accurate and complete FBI case files for a probable cause determination. The FISC is charged with issuing relevant warrants under FISA, including those that authorize electronic surveillance or a physical search.

Top Intelligence Community Leaders Testify Before the Senate Select Committee on Intelligence

Top intelligence officials’ testimony at the March 8 Senate Intelligence Committee hearing reaffirmed Section 702’s crucial role in mitigating national security threats. Haines noted that Section 702 permits intelligence-gathering against foreign targets “at a speed and reliability” that the United States “cannot replicate with any other authority.” The authority helped ensure that the ODNI delivered an accurate 2023 Annual Threat Assessment of the U.S. Intelligence Community, she testified, and played a “key role” in the U.S. government’s operations against former Al-Qaeda leader Ayman al-Zawahiri. Haines also told the Committee that the authority is crucial for countering malicious cyber actors targeting critical U.S. infrastructure and the proliferation of weapons of mass destruction. FBI Director Christopher Wray similarly testified that Section 702 is vital to efforts to stymie China’s hacking program, which is “bigger than [those of] every major nation combined;” Russia’s “significant” use of cyber “as an asymmetric weapon;” and Iran’s “efforts to conduct destructive [cyber] attacks even in the United States.” He suggested that each of these powers is “trying to build pre-positioned capabilities” they might deploy during “a much more serious conflict.”

The officials also underscored that Section 702 does not authorize collection of information on American citizens. Gen. Paul Nakasone, the Director of the National Security Agency, agreed with Sen. Rounds’ (R-SD) characterization that Section 702 targets non-U.S. persons outside of the country who are using platforms with a nexus to U.S. communications systems. However, Nakasone added, when foreigners operating outside the United States reference someone in the United States in their communications, the intelligence community follows protocols to “minimize” and “hide that data” in order to protect the civil liberties and privacy of U.S. persons. Wray similarly testified that he was “very pleased to be able to share with the Committee…publicly for the first time that we saw in 2022 a 93 year-over-year drop in U.S. person queries.”

FISA is set to expire in December 2023 unless reauthorized.

IMAGE: U.S. Attorney General Merrick Garland testifies before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill on March 01, 2023 in Washington, DC. (Photo by Chip Somodevilla/Getty Images)