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Meet the Justice Department's FISA closer

As lawmakers on Capitol Hill began to vote Thursday afternoon to extend a fiercely debated electronic surveillance pr...

Posted: Jan 19, 2018 12:01 PM
Updated: Jan 19, 2018 12:01 PM

As lawmakers on Capitol Hill began to vote Thursday afternoon to extend a fiercely debated electronic surveillance program, a small circle of officials at the Justice Department huddled around a TV in a fifth-floor conference room watching C-SPAN.

The group snacked on cookies and chocolates, confident that the bill that reauthorizes Section 702 of the Foreign Intelligence Surveillance Act would finally get passed -- and it did, with 65 votes.

The path toward congressional approval has been quietly spearheaded for months by an official at the Justice Department who tries to stay out of the headlines.

Associate Attorney General Rachel Brand has had a full portfolio on everything from combating violence against women in tribal communities to advocating against religious discrimination since taking the reins as the number three official at the Justice Department last May. But last year Attorney General Jeff Sessions directed Brand to make the 702's reauthorization a top priority, officials at the department say.

For those in the intelligence community and law enforcement, 702 is an essential tool in preventing terrorist attacks, but civil libertarians say the program doesn't provide enough protections for Americans whose communications may get "incidentally" swept up when talking to foreigners abroad or searched without a warrant.

During the Obama administration, Brand served as a member of the Privacy and Civil Liberties Oversight Board, which conducted an in-depth look at the 702 program in 2016. At the time, Brand told senators that the program was "widely misunderstood."

Fast forward, over a year later, and Brand was steering the 702 ship at Justice -- having nearly 100 calls and meetings with Senate and House lawmakers on both sides of the political aisle, working with the White House, and holding in-person meetings with Justice officials twice a week to plot out their strategy, according to DOJ officials.

In December, the usually low-profile Brand went on a media blitz -- appearing on Fox News and MSNBC, and penning an op-ed in The Washington Post that emphasized how "communications collected under Section 702 exposed the plans of an Islamic State network to attack members of our military abroad."

Brand declined to be interviewed for this article.

According to one Justice official, a press assistant at DOJ was tasked with sending 702-related news clips to the core unit of those working on its passage so that everyone could keep track of the public narrative, sensing that the amount of coverage in the mainstream media was not commiserate with the urgency and importance of the bill's passage -- plus they had to try to persuade (or at least counter) a vocal chorus of critics promising to vote against it.

"She has the gravitas of being the third ranking official in the Department of Justice, but also the subject matter expertise on Section 702 from her time serving on the bipartisan Privacy and Civil Liberties Oversight Board," said Assistant Attorney General Stephen Boyd. "But even beyond that, she was always willing to clear her schedule to speak with a Senator or Member of Congress to help get this critical legislation passed. She was truly invaluable to our efforts."

Sessions and Deputy Attorney General Rod Rosenstein also made a number of calls to lawmakers to shore up votes on 702 over the past several weeks, Justice officials say, in conjunction with inter-agency efforts from FBI Director Christopher Wray, Director of National Intelligence Dan Coats, and CIA Director Mike Pompeo.

But it was Brand who was with Coats at the Senate Tuesday evening for the surprisingly close vote to end the filibuster on the FISA extension. The two knew each other well from back in George W. Bush administration when Brand led the Office of Legal Policy at Justice Department and Coats -- who was a Republican senator from Indiana at the time -- helped shepherd then-judge Samuel Alito through his confirmation process to the US Supreme Court.

On Tuesday evening, the Brand-Coats tag team was at it again -- talking to lawmakers, answering questions and helping convince reluctant senators to advance the bill, Justice and congressional sources told CNN.

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