Lawmakers on Capitol Hill are gearing up for a dramatic two days of hearings, with top intelligence officials set to testify before the Senate Wednesday — just one day before ex-FBI Director James Comey will speak publicly for the first time since President Donald Trump abruptly fired him in May.
But while Comey’s hearing will largely focus on Russia and the Trump administration, his former peers are expected to speak about another contentious topic: the U.S. government spying on Americans without a warrant.
Who will be there?
The Senate Select Committee on Intelligence hearing will feature a who’s who of the U.S. intelligence community: Director of National Intelligence Daniel Coats, FBI Acting Director Andrew McCabe, National Security Agency Director Admiral Mike Rogers, and Deputy Attorney General Rod Rosenstein are all expected to testify. This will be the first time Rosenstein has testified publicly since he talked to lawmakers about the May 9 firing of Comey.
What will they talk about?
Committee members will almost certainly bring up the Russia probe, Comey’s firing, and the officials’ private interactions with Trump — especially in light of a Tuesday Washington Post report that Trump complained about Comey’s handling of the Russia investigation to Coats and CIA Director Mike Pompeo and suggested that the officials intervene. Trump also allegedly asked Coats and Rogers to deny that the Trump campaign had colluded with Russia to meddle in the 2016 election.
Both men reportedly declined to act on Trump’s request, deeming it inappropriate.
“The president has said in his own words that he fired Mr. Comey to make the investigation go away,” Democratic Sen. Ron Wyden, of Oregon, told CNN. “Now that was not something that was made up by a United States senator. Those were his words. So what we’ll be doing both tomorrow and Thursday is trying to flesh out more details about that matter.”
But the intelligence chiefs can also expect questions about the hearing’s official purpose, Section 702 of the Foreign Intelligence Surveillance Act, which is set to expire at the end of this year if Congress doesn’t renew it. Broadly speaking, Section 702 authorizes the government to vacuum up the electronic communications of non-American nationals living abroad. The targets do not need to be a suspected terrorist or spy, and it is generally an accepted fact that Americans’ communications sometimes get “incidentally” caught up in that vacuum, thanks to various technical and practical difficulties.
Unsurprisingly, the law has been controversial for years, as privacy advocates say it chills free speech and amounts to subjecting Americans to unconstitutional warrantless searches. But the law was still expected to be renewed without facing any real resistance — until earlier this year, when news outlets reported that former national security adviser Susan Rice had “unmasked” the identities of some of President Trump’s transition team officials, requesting that their redacted names be revealed in reports that used intelligence gathered through Section 702 spying tools.
Requests like Rice’s happen all the time. While the identities of Americans who interact with the targets of surveillance operations are usually kept anonymous in reports, if an administration official decides she needs to know who those Americans are to better understand a report, she can ask intelligence officials to “unmask” them. And the officials often do so: In 2015, the NSA released more than 4,000 reports that used intelligence gathered through Section 702 spying tools and that included information on U.S. nationals, according to an agency transparency report. Of those reports, more than 1,100 included unmasked information.
But the fact that Rice’s request was routine didn’t stop Trump from attacking her for it, suggesting it amounted to the Obama administration “spying” on his team.
“I think the Susan Rice thing is a massive story. I think it’s a massive, massive story. All over the world,” Trump told the New York Times, adding — without evidence — that Rice may have committed a crime by asking for his officials’ identities.
Why does this matter?
Republicans have long supported Section 702, but in the wake of both the Rice controversy and the leaks plaguing the investigation into the Trump campaign’s ties to Russia, some appear to be reassessing whether the law can be misused for political gain.
“When we try to retain this tool this year and try to convince some of our colleagues that this is really important for national security and somebody in the intelligence community says, ‘You know what, the hell with it, I’m going to release this person’s name because I’m going to get something out of it,’ we’re all going to be hurt by that,” Republican Rep. Tom Rooney, of Florida, told Comey and Rogers during a hearing earlier this year.
Still, despite Trump’s earlier outcry, it appears that his administration wants the law to continue without changes. In March, an administration official told Reuters, “We support the clean reauthorization and the administration believes it’s necessary to protect the security of the nation.”
So, ultimately, it’s unclear just how harshly Republicans will grill the intelligence community officials about the law on Wednesday — but if they want to steer the conversation away from Comey, they may have little choice.