'Utterly ridiculous': Biden DOJ aims to bypass Congress to renew spying power

Privacy advocates responded with outrage Thursday to news that the Biden administration has decided to pursue a year-long extension of warrantless spying authority in court rather than working with Congress to enact reforms that are popular across party lines.

The decision, first reported by The New York Times, came after the House Republican leadership last month abruptly canceled planned votes on proposed changes to Section 702 of the Foreign Intelligence Surveillance Act (FISA).

While Section 702 is supposed to only allow U.S. agencies to spy on non-citizens located outside the country, the communications of American journalists, activists, and others are regularly collected under the surveillance authority, sparking widespread support for an overhaul.

Sen. Ron Wyden (D-Ore.), a leading advocate of Section 702 reform, said in a statement Thursday that "it is utterly ridiculous that the Biden administration and the Justice Department would rather risk the long-term future of an important surveillance authority than support a single meaningful reform to protect Americans' rights."

"A broad bipartisan, bicameral coalition agrees that FISA Section 702 should be reauthorized with reforms to protect the rights of Americans," said Wyden. "Yet rather than seriously engage with congressional reformers, the administration has decided to short-circuit the legislative process and ask the FISA Court for an extra year of surveillance without any reforms at all."

Rep. Zoe Lofgren (D-Calif.) also expressed alarm over the Biden administration's decision, saying it is "extraordinary that, despite broad support for substantial reform, the Department of Justice is discreetly attempting to bypass the legislative process to secure another surveillance reauthorization."

"This is unacceptable," Lofgren added, "and completely undermines the authority of the Congress."

Section 702 authority is set to expire in April. The Biden administration has claimed that allowing Section 702 to lapse would create a "dangerous gap" in data collection.

"The government isn't trying to prevent a gap; it's trying to sneak through an additional year of surveillance without congressional approval."

Last month, the House was supposed to vote on amendments to a compromise Section 702 bill—and reform advocates believed they could secure passage of meaningful reforms to the spying authority.

But House Speaker Mike Johnson (R-La.) called off the votes shortly after Rep. Mike Turner (R-Ohio), chair of the House Permanent Select Committee on Intelligence (HPSCI), issued a statement warning of a "serious national security threat"—an obvious ploy to derail momentum for Section 702 reform.

It later became clear that Turner's statement pertained to U.S. intelligence indicating that Russia has made progress on a space-based nuclear weapon—something members of Congress have known about for years. The intelligence was reportedly gathered using Section 702 authority.

Turner's gambit prompted calls for his resignation from the HPSCI chairmanship, with advocacy groups accusing the Ohio Republican of exploiting his privileged access to intelligence to "scare" his fellow lawmakers "in an effort to undermine reform of warrantless surveillance laws."

The Times reported earlier this week that the U.S. Justice Department has informed congressional leaders of its decision to seek a one-year extension of Section 702 powers.

Reform advocates want, at the very least, to require U.S. agencies to obtain a warrant before collecting the communications data of an American—a change the Biden administration opposes. Reformers are also working to close the so-called "data broker loophole," which allows government agencies to purchase Americans' information from commercial data brokers.

Elizabeth Goitein, co-director of the Liberty and National Security program at the Brennan Center for Justice, told the Times that the Biden administration's effort to extend the spying powers through the FISA Court "shows the government's utter contempt for the role of Congress and the democratic process when it comes to FISA and Section 702."

"The government isn't trying to prevent a gap; it's trying to sneak through an additional year of surveillance without congressional approval," said Goitein.

In addition to opposing a Section 702 extension through the FISA Court, civil liberties advocates are warning against any attempt to include an extension in must-pass government funding legislation.

"Bypassing this process by slipping an extension of the law into a must-pass funding bill would demonstrate a blatant disregard for the civil liberties and civil rights of the American people," a coalition of civil society organizations wrote in a letter to congressional leaders on Wednesday.