- The Washington Times
Wednesday, June 7, 2017

Just months after President Trump complained about being spied on by the Obama administration, his administration is embracing a full permanent extension of the secret snooping powers the government used to track conversations between his campaign aides and Russian operatives.

Mr. Trump’s intelligence and counterterrorism team said Section 702 of the Foreign Intelligence Surveillance Act has saved hundreds of lives by preventing terrorist attacks and insisted — despite Mr. Trump’s claimed experiences — that the law is not being abused.

“Simply put, the use of this authority has helped save lives,” Thomas P. Bossert, President Trump’s top counterterrorism adviser, wrote in an op-ed in The New York Times, announcing support for a bill introduced this week making the snooping powers permanent.

Without congressional action, Section 702 is set to expire on Dec. 31.

That part of the law allows federal intelligence agencies to scoop up the communications of foreigners outside the U.S. It does not allow Americans to be targets of snooping, but if foreigners who are targeted are communicating with Americans, then those exchanges can be tracked in what is dubbed “incidental collection.”

About 10 percent of conversations monitored end up with incidental collection, National Security Agency Director Michael Rogers testified to Congress on Wednesday.

Most of those Americans remain anonymous, even within the security agencies. The real issue arises when some are “unmasked” — the process of attaching Americans’ names to the communications.

The leak of unmasked information about former Trump National Security Adviser Michael Flynn was part of what set off the president earlier this year, when he demanded investigations, accused intelligence agencies of going rogue and claimed the Obama administration had wiretapped Trump Tower.

All told, more than 1,900 Americans were unmasked last year based on information collected under Section 702.

U.S. officials said there have been no intentional breaches of the rules governing Section 702 and that unintended breaches are less than 1 percent. Still, the government won’t say how many Americans are scooped up in the collection.

Director of National Intelligence Daniel Coats said his agencies have made herculean efforts to calculate that figure but added that it’s infeasible.

He said it would take people away from their focus on Iran or North Korea and claimed that even trying to count could force his analysts to identify Americans who haven’t been singled out yet, which he said could end up infringing their rights.

That didn’t sit well with Sen. Ron Wyden, Oregon Democrat, who said not being able to quantify the number of Americans ensnared by Section 702 endangers the entire program.

Civil liberties advocates accused Mr. Trump of hypocrisy for complaining about snooping during the campaign and now supporting the very tools he was worried about.

“Only months after demanding information about his own unsubstantiated spying claims, his administration is failing to provide information about how many Americans are impacted by this surveillance authority,” said Neema Singh Guliani, a lawyer at the American Civil Liberties Union.

“The government likely holds over a billion communications collected under Section 702, and it is long overdue for Congress to finally pass reforms to curb this invasion of Americans’ privacy,” she said.

Some suggestions for changes include requiring warrants before unmasking Americans and formalizing the process of appointing an amicus advocate to argue for liberties to the secret FISA court that oversees the law.

Sen. Dianne Feinstein, California Democrat, said she also would like to preserve the sunset provision to make sure Congress regularly reviews the law.

The debate splits both parties, with security hawks saying the program is too valuable to lapse, while privacy advocates say they want more assurances.

Administration officials say the program is already reviewed regularly by internal auditors in the intelligence community, by Congress’ secret oversight committees and by the FISA court.

Late last year, the intelligence community self-reported violations to the court for queries about Americans. A judge withheld full certification until the NSA fixed the problem.

Outside analysts have said the incident is evidence of problems, while the program’s defenders say it’s evidence that the system is working and can correct itself.

The leaks from former intelligence contractor Edward Snowden helped shine a spotlight on the expanse of U.S. intelligence gathering in recent years. His revelation that the National Security Agency had engaged in bulk collection of Americans’ telephone call metadata — the dates, duration and parties involved in phone calls — sparked a massive outcry.

In the wake of those reports, Congress substantially rewrote the part of the Patriot Act that allowed the collection, prohibiting the government from collecting or holding it in bulk. Without the rewrite, the snooping powers would have disappeared altogether.

Now it’s the Section 702 collection that faces a doomsday deadline, and the Trump administration is desperate to preserve the powers.

Mr. Coats said “literally hundreds of lives” have been saved because the U.S. collected and shared 702 information with European allies, heading off imminent attacks.

The government is still tight-lipped about specifics, but one example officials are willing to give in the U.S. is the New York City subway bombing plot. American authorities tracking an al Qaeda courier in Pakistan found he was communicating with someone inside the U.S. who was seeking advice about making explosives.

The NSA passed that information to the FBI, which identified Najibullah Zazi. Authorities said he had plans to bomb the subway.

Mr. Coats also pointed to the case of Haji Iman, a radicalized imam who became the Islamic State’s finance minister.

Section 702 information was used to identify his location, and U.S. forces were sent to apprehend him, Mr. Coats said. After Haji Iman and his associates resisted, they were killed. Mr. Coats declassified the information about how Haji Iman was tracked in order to bolster the case for Section 702 renewal.

Intelligence officials also said Section 702 allowed them to sniff out Russia’s attempts to meddle in the presidential election — a revelation that is still roiling the political scene in Washington.

Mr. Rogers said the NSA is required to report any criminal or dangerous information collected on Americans and can hang on to anything it deems important for intelligence purposes. Other than that, they must purge incidental collection that snares Americans’ communications.

The Trump administration is backing a full permanent renewal written by Sen. Tom Cotton of Arkansas, who introduced his bill Tuesday along with other major security hawk Republicans.

“We can’t handcuff our national security officials when they’re fighting against such a vicious enemy. We’ve got to reauthorize this program in full and for good, so we can put our enemies back on their heels and keep American lives safe from harm,” Mr. Cotton said.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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