White House Memo, via Jordan Carney:
THE BIGGS AMENDMENT IS A THREAT TO NATIONAL SECURITY
The Biggs amendment would eviscerate the value of Section 702
This extreme amendment would impose dangerous limits on the ability to review critical intelligence on key threats, including terrorist threats to the Homeland, fentanyl supply chains bringing deadly drugs into American communities, Russian war crimes, and hostile governments’ recruitment of spies.
The amendment bars U.S. officials from querying lawfully-collected Section 702 data to find communications of an American, except in extraordinarily limited and unworkable exceptions.
While Section 702 is focused exclusively on foreigners overseas, this prohibition would block the IC to identifying vital intelligence it has already collected where foreign 702 targets communicate with, or about, an American.
This will prevent U.S. offficials from quickly examining critical communications already in the government’s lawful possession, raising the unacceptable risk that the government might not respond to a developing threat until it is too late, or at all.
Queries of Section 702-including U.S. person queries are essential to identify and disrupt threats to our national security and to protect victims. The FBI’s ability to quickly query Section 702 information has enabled investigators to:
Prevent a potentially imminent strike by a terrorist in the Homeland, who had the means to conduct an attack and had researched and identified specific sites.
Disrupt an ongoing assassination and kidnapping plot targeting a dissident in the U.S.
Mitigate a cyber breach by China-based hackers against U.S. critical infrastructure.
Under the Biggs amendment, the FBI would have been unable to gain access to the critical information necessary to take these actions in time to protect the country.
The exceptions to the amendment’s query ban are alarmingly narrow and unworkable.
The “warrant” exception allows a query if, beforehand, the executive branch has obtained a court order based on probable cause. But the executive branch almost never can meet that standard at the earliest stages of an investigation when queries are most critical.
The “exigent circumstances” exception for imminent threats of death and serious bodily harm would almost never be satisfied, even in the face of a terrorist threat. Queries are often run to determine if an emergency exists in the first place. Without viewing the results of a query, an analyst would not know whether the threat meets the statutory exception.
The “consent” exception is not practical in national security investigations. It is often impossible to know in advance whether a person is a victim or perpetrator of malicious activity and there is often not sufficient time to obtain consent from a private party.
This would be a reckless policy choice that is contrary to the key lessons of 9/11 and not grounded in any constitutional requirement or statute.
