- Kevin Lamarque/Reuters
WASHINGTON – The Senate Intelligence Committee on Wednesday grappled with an aspect of federal intelligence law that has been at the center of President Donald Trump’s accusations of improper surveillance under the Obama administration.
The committee held an open hearing to discuss Foreign Intelligence Surveillance Act (FISA) legislation with top intelligence officials, focusing on section 702 of the act outlining “Procedures for Targeting Certain Persons Outside the United States Other Than United States Persons.”
Section 702 of FISA has come under scrutiny amid the intelligence community’s probe into Russia’s election interference and whether Trump’s campaign team colluded with Moscow during the election to undermine then-Democratic presidential nominee Hillary Clinton.
Trump and his allies have pointed to media reports detailing intercepted conversations that allegedly took place between Trump associates and Russian officials during the election, alleging that the campaign was illegally surveilled by the Obama administration.
Neither the White House nor the US intelligence community can legally target US persons for surveillance, experts and current and former officials have noted.
But the intelligence community can surveil foreigners under Section 702, and if those foreigners are speaking with or about US persons, then the Americans’ identities may be included in intelligence reports summarizing the monitored conversations. The identities of those Americans are normally masked, or redacted, however, before the intelligence reports are disseminated to anyone outside of the National Security Agency.
Director of National Intelligence Dan Coats defended Section 702 on Wednesday, telling the committee that 702 collection “has produced and continues to produce foreign intelligence information that is vital to protect the nation against international terrorism and other threats.”
“We have never, not once, found an intentional violation of this program,” Coats said.
Both the chairman and the vice chairman of the Intelligence Committee, Republican Sen. Richard Burr and Democratic Sen. Mark Warner, respectively, said in their opening statements that it was in the US’ national security interests to authorize Section 702 intelligence collection.
“Have their been any instances involving a deliberate or intentional compliance violation?” Burr asked NSA Director Mike Rogers, who replied that there had not been, and said that if Section 702 collection was not authorized, the NSA would be unable to identify and prevent critical threats to US national security.
Deputy Attorney General Rod Rosenstein agreed, adding that if the intelligence community needed to get a warrant every time it sought to use Section 702 to target foreigners not on US soil, “it would be very time-consuming” and would hinder intelligence agencies’ efficiency.
“The law is expressly designed to ensure that we are not using this capability to target US persons,” Rogers said.
Asked about incidental collection, Rogers said that “90% of the time” it happens when the NSA is “monitoring two foreign individuals, and those foreign entities talk about a US person.” About “10% of the time,” Rogers said, incidental collection occurs “when we are targeting a valid foreign intelligence target who ends up having a conversation with a US person.”
When a US person is involved in these monitored conversations in any way, Rogers said, “we first ask ourselves if we are looking at a potentially criminal act.”
“If the answer is yes, then we refer the conversation to the Department of Justice,” Rogers continued. “We are not a law enforcement agency.” Rogers added that the NSA “purges the data” if the conversation has no valid intelligence purpose.
Deputy Attorney General Rod Rosenstein said later that “if there are willful violations” of Section 702, then the Department of Justice would hold those individuals accountable.
“Who are the targets of a 702 investigation?” Democratic Sen. Ron Wyden asked Coats.
“Targets, as I understand, are non-US persons – foreign individuals are the targets,” Coats said.
Republican Sen. Roy Blunt asked acting FBI Director Andrew McCabe whether the FBI ever seeks collection under Section 702. McCabe replied that it does, but that if the bureau is seeking to collect intelligence on a US person, it has to obtain a warrant first from the Foreign Intelligence Surveillance Court.
Democratic Sen. Dianne Feinstein asked about “unmasking,” which occurs when a US person’s identity is revealed in reports compiled based on intelligence collected under Section 702. Trump and his allies have accused the intelligence community of improperly unmasking US persons, revealing their identities to former Obama administration officials who then allegedly leaked them to the press.
“Unmasking is a different issue than leaks,” Rosenstein said.
Rogers said that, for the NSA, “20 individuals in 12 different positions” have the ability to authorize an unmasking.
“We outline, in writing, what criteria we applied to a request to unmask… when we think we need to reference a US person in a report, we will not use their name,” Rogers said. “Some of the recipients in that report will sometimes come back to us and say, ‘I am trying to understand what I am reading.'”
At that point, Rogers said, the individual making the unmasking request must do so in writing, and must prove that the request “tangibly ties to their job.”
“The basis of the request must be that you need this identity to understand the intelligence you’re reading,” Rogers said.
If an unmasking is approved, then only the individual who requested it will be given the requested identity.
Republican Sen. Marco Rubio asked if there was “a significant uptick” in unmasking requests by the Obama administration, but Rogers replied that he did not know.
Trump and his supporters are on a mission to expose why the Obama administration requested the unmasking of his associates who were either mentioned or directly involved in surveilled conversations with Russian officials last year.
The chairman of the House Intelligence Committee, Republican Rep. Devin Nunes, reportedly subpoenaed the CIA, FBI and NSA last week for more details on those unmasking requests. Nunes, who was a member of Trump’s transition team, did not tell his Democratic colleagues before issuing the subpoenas, committee aides told Reuters.