Associate AG Rachel Brand Discusses Importance of FISA Section 702 Reauthorization

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Associate Attorney General Rachel Brand said Wednesday that her top national security priority on Capitol Hill is to convince Congress to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, or FISA.

Brand appeared on WTOP's "The National Security Podcast with JJ Green" to discuss concerns about the controversial surveillance program, which she said is widely misunderstood. Brand said she has put a great deal of effort into meeting with members of Congress and explaining the value of the program, which allows intelligence agencies to spy on foreigners abroad who communicate through American phone and internet providers without a warrant.

"We've really spent a lot of time, and I've personally spent a lot of time up on the Hill meeting with individual members of Congress and talking through with them the value of the program, how it works, addressing any concerns they might have," Brand said. "I'm hopeful that we'll get to the place that we need to be, but we are certainly spending all the time that we need to to get there."

The House Intelligence Committee held an open markup of its reauthorization bill on Dec. 1, and Brand said she found that to be encouraging.

"With the markup in the House Intelligence Committee, I feel better. I think that is a vehicle that may work out well," she said, adding that predictions about congressional maneuvering may be above her "pay-grade."

Brand was asked what would occur if Section 702 was not reauthorized, and she said it would swiftly hurt U.S. intelligence operations.

"At that point, we would have to start winding the program down and we would very soon thereafter start losing valuable intelligence," she said.

"We start becoming blind to some of the intelligence we can gather now," she added. "At the moment, there is just no legal authority that is an adequate substitute for this authority."

Brand also addressed the matter of requiring warrants for queries of the intelligence data, which she said would prevent investigators from accessing information already collected. According to Brand, privacy concerns stemming from Edward Snowden's leaks have hindered reauthorization, and she argued that misconceptions about Section 702 drive those concerns.

"There have been some privacy concerns raised about Section 702; those began to be raised after Mr. Snowden released details about the program," she said. "There was a lot of misunderstanding at the time about what Section 702 was, and it was often confused with the Section 215 bulk telephony metadata program."

"Because the programs were leaked around the same time, they were often confused," Brand added about Sections 702 and 215. "They were certainly confused in the press, reporting would often conflate the two, and I think some members of Congress have also kind of lumped them together in their mind."

Brand added that former President Barack Obama ordered an in-depth investigation that resulted in some tweaks to Section 702 but still concluded it was legal, targeted, and highly effective. She said the program protects privacy and has rules when the government does eavesdrop on Americans, such as those who are contacted by terrorists abroad.

Section 702 of FISA is set to expire at the end of the year unless Congress reauthorizes it.

Paul Crookston

Paul Crookston   Email Paul | Full Bio | RSS
Paul Crookston is a media analyst with the Washington Free Beacon. He was previously a Collegiate Network fellow at National Review. A 2016 graduate of Gordon College in Wenham, Mass., he served as the managing editor of the Tartan campus newspaper. He is originally from Tampa, Fla., but he still roots for Dad’s Ohio teams. His Twitter handle is @P_Crookston. He can be reached at crookston@freebeacon.com.

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