In an unusual statement late Thursday night, Director of National Intelligence James Clapper justified the Obama administration’s broadening surveillance powers under Section 702 of the Foreign Intelligence Surveillance Act.
“Section 702 is a provision of FISA that is designed to facilitate the acquisition of foreign intelligence information concerning non-U.S. persons located outside the United States,” Clapper said. “It cannot be used to intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States.”
FISA, which was first signed into law in 1978, has been repeatedly amended since the Sept. 11, 2001, terrorist attacks. In December, President Barack Obama signed an extension of the FISA Amendment Acts, which were set to expire at the end of last year and include some of the most controversial warrantless interception programs.
Section 702 of the act raised concerns among members of the Senate Intelligence Committee during discussion of the act’s renewal last year.
The section allows the Attorney General and Director of National Intelligence, for a period of up to one year, to engage in “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.”
There are limits to the section. No one inside the United States and no U.S. citizens currently in or out of the country may be “intentionally” targeted.
The Attorney General and DNI must submit to the FISA Court an application for an order (termed a “mass acquisition order”) for the surveillance of the target either before their joint authorization or within seven days.
Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) last year raised alarm at the possibility of a loophole in section 702 that “could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens.” This is because the FISA Amendments Act does not require the government to identify targets of their surveillance.
“Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats,” Clapper said on Thursday.
“The unauthorised disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans.”
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