Counterterror Director Used Hamas Attack to Justify Mass Surveillance Program Renewal

During a Senate briefing last week, a federal counterterrorism official cited the October 7 Hamas attack while urging Congress to reauthorize a sprawling and controversial surveillance program repeatedly used to spy on U.S. citizens on U.S. soil.

“As evidenced by the events of the past month, the terrorist threat landscape is highly dynamic and our country must preserve [counterterrorism] fundamentals to ensure constant vigilance,” said Director of the National Counterterrorism Center Christine Abizaid to the Senate Committee on Homeland Security, after making repeat references to Hamas’s attack on Israel.

She pointed to Section 702 of the Foreign Intelligence Surveillance Act, which enables the U.S. government to gather vast amounts of intelligence — including about U.S. citizens — under the broad category of foreign intelligence information, without first seeking a warrant.

Section 702 “provides key indications and warning on terrorist plans and intentions, supports international terrorist disruptions, enables critical intelligence support to, for instance, border security, and gives us strategic insight into foreign terrorists and their networks overseas,” Abizaid said. “I respectfully urge Congress to reauthorize this vital authority.”

The controversial program is set to expire at the end of the year, and lawmakers sympathetic to the intelligence community are scrambling to protect it, as some members of Congress like Sen. Ron Wyden push for reforms that restrain the government’s surveillance abilities. According to Rep. Jim Himes, the ranking Democrat on the House Intelligence Committee, plans are underway to prepare a stopgap measure to preserve Section 702 of FISA as a long-term reauthorization containing reforms is hammered out. 

Sean Vitka, senior policy counsel at the civil liberties group Demand Progress, told The Intercept that now is the time to enact lasting and dramatic oversight of the 702 authority. “The government has completely failed to demonstrate that any of the privacy protections reformers have called for would impair national security, all while surveillance hawks in Congress have suffered a series of setbacks, so now we’re seeing people grasping at straws trying to turn everything into an excuse for reauthorization,” Vitka said.

“We’re seeing people grasping at straws trying to turn everything into an excuse for reauthorization.”

He added that “agencies’ refusal to embrace this as a once-in-a generation opportunity to protect Americans’ civil liberties and reform our broken surveillance apparatus” could doom 702 in the long run.

Created in 1978, FISA was vastly expanded in the aftermath of 9/11 to provide federal law enforcement and intelligence agencies enhanced surveillance powers. While it was originally described as a way to collect information on foreign entities, the law enables the targeting of U.S. citizens in contact with foreign nationals.

This loophole makes it easy for federal agencies to target wide swaths of the U.S. population, and it has for years been condemned by civil liberties advocates who view it as a clear-cut instance of governmental overreach. The 702 authority has been abused to such a great extent that President Joe Biden’s own intelligence advisory board recommended curtailing the FBI’s ability to manipulate the authority to investigate and prosecute Americans.

The Brennan Center for Justice last month issued a document noting that the FBI has used the 702 authority to spy on U.S. representatives, senators, civil liberties organizations, political campaigns, and activists. Civil libertarians have proposed various reforms to the authority, including limits on the types of communication the FBI can search, the implementation of stringent warrant requirements to restrict FISA searches, and an end to the loophole that allows federal agencies to surveil Americans by purchasing data from private sector brokers. 

Abizaid’s statements to the Senate Homeland Security Committee followed similar appeals by FBI Director Christopher Wray and Secretary of Homeland Security Alejandro Mayorkas, who also spoke at the hearing. The push to extend the government’s surveillance powers comes as elected officials call for investigations into pro-Palestine groups — drawing condemnation from numerous civil rights groups, including the American Civil Liberties Union.

Already in Virginia, the attorney general has initiated an investigation into the nonprofit American Muslims for Palestine’s fundraising activities, including allegations that it supports Hamas, a designated terror group. The organization described the investigation as a dangerous and baseless smear.

Meanwhile in Congress, the Senate passed a unanimous resolution condemning students supporting Palestine on college campuses. Sen. Josh Hawley, R-Mo., wrote to the Department of Justice to request an investigation into student groups at various universities that have seen large gatherings protesting the war in Gaza. “There is a long and sordid history of supposedly independent ‘human rights’ groups operating within American borders, that possess longstanding ties to foreign terrorist organizations,” Hawley wrote. “It is entirely possible that many of these student organizations, at some level or another, are enmeshed in similar networks — whether as recipients of funding from these malicious actors or as conduits for it.”

The ACLU lambasted efforts by Hawley and others in an open letter. “A blanket call to investigate every chapter of a pro-Palestinian student group for ‘material support to terrorists’ — without even an attempt to cite evidence — is unwarranted, wrong, and dangerous. It echoes America’s mistakes during the McCarthy era and is counterproductive. We urge college and university leaders to hold fast to our nation’s best traditions and reject proposals to restrict constitutionally protected speech.”

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