March 01, 2017

Adam Klein before the House Judiciary Committee

Section 702 of the Foreign Intelligence Surveillance Act

By Adam Klein

Chairman Goodlatte, Ranking Member Conyers, and members of the Committee, thank you for the opportunity to testify today. In today’s chaotic world, our country faces a complex array of national security threats, both from adversary nations and from non-state terrorist groups. Recently retired Director of National Intelligence James Clapper said last year that in his 50-year career in intelligence, he could not “recall a more diverse array of challenges and crises than we confront today.”

In this challenging geopolitical context, the American people are fortunate to have the
world’s most capable intelligence services. Intelligence Community personnel work to protect the American people from a range of threats—from terrorism, to the theft of American companies’ trade secrets, to subversion of our democratic processes by foreign intelligence services. In a digital world, signals intelligence is an essential tool for detecting and defeating these threats.

Our intelligence agencies, led by the NSA, carry out the signals intelligence mission under what the President Obama’s Review Group on Intelligence and Communications Technologies described as a system of “oversight, review, and checks-and-balances” that “reduce[s] the risk that elements of the Intelligence Community would operate outside of the law.” The Review Group, which President Obama commissioned in the wake of the Snowden leaks to review U.S. signals intelligence activities, emphasized in its report that it had found “no evidence of illegality or other abuse of authority for the purpose of targeting domestic political activity.” That accords with other reports that have emphasized the deep-rooted culture of compliance and legal oversight at NSA.

At the same time, the Snowden leaks revealed that the scale of government data collection— even collection that was lawful and approved by the Foreign Intelligence Surveillance Court—was greater than most Americans would have anticipated given the available public information, including the text of the relevant statutes. The resulting climate of skepticism, at home and abroad, continues to harm U.S. interests in various ways.

This is not simply a privacy or civil liberties problem: If allowed to persist, public skepticism is also a problem for national security. That is because public trust is the foundation on which national security powers, including Section 702, ultimately rest. Needed surveillance tools will be politically sustainable only if the public is persuaded that they are necessary, appropriate, and lawful.

For that reason, strengthening public confidence in the legal and institutional controls on surveillance powers should be seen as a national security imperative as well as a priority for civil libertarians. The challenge is how to strengthen transparency, privacy, oversight, and ultimately public confidence without harming needed national security capabilities. In a recent Center for a New American Security report, Surveillance Policy: A Pragmatic Agenda for 2017 and Beyond, coauthors Michèle Flournoy, Richard Fontaine, and I offered 61 recommendations to build public trust, increase transparency, and strengthen oversight, while preserving important intelligence and counterterrorism tools. Part III of this testimony suggests a number of ways the Committee can advance these goals while reauthorizing Section 702.

The full testimony is available online.

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