Congress can’t afford to let the Feds lose this critical intelligence tool

In 33 days, a key authority within the Foreign Intelligence Surveillance Act is slated to sunset, leaving the U.S. without one of its best sources of intelligence on terrorists, adverse state actors and drug traffickers. Allowing this national security authority to expire would be a grave mistake.

Congressional reauthorization of the provision known as Section 702 is a must, but it won’t be easy. As the managers of the Justice Department’s last successful reauthorization campaign, we know that this authority, which allows the U.S. government to conduct surveillance on foreign persons reasonably believed to be overseas, is a critical intelligence tool.

But as former chiefs of staff on Capitol Hill, we also understand that congressional concern about alleged misuse of collected data must be addressed. Those dueling realities — the program is at once valuable and in need of repair — demand a compromise that improves the law without gutting its usefulness.

Today, we sense knowledge and trust deficits on Capitol Hill that open the door for unserious voices to derail what must be a national security priority. This is not the time for Congress to be buffeted by ill-informed opinions on the political fringes or fall prey to myth-making by outside groups. Individual members of Congress must take it upon themselves to get educated on the facts and the law — critical, given that nearly half of all House members are new since the last reauthorization.

In 2017, we and other colleagues conducted scores of briefings with members. Then, as now, rank-and-file lawmakers needed to better understand the legal framework and value of this provision. Those closed-door conversations highlighted that it allows for surveillance of overseas foreign targets identified by specific selectors such as an email address. Section 702 is not a bulk collection program.

We also impressed upon lawmakers that the program is legal. An individualized warrant is not required, because the court has provided “programmatic preclearance” based on the procedures in place. This allows greater agility in tracking bad foreign actors and avoids a probable cause requirement, a constitutional safeguard intended to protect Americans.

Moreover, reverse targeting — that is, surveillance of a foreign person for the purpose of collecting information on a U.S. person — is explicitly prohibited. Minimization procedures must be followed in instances where U.S. persons’ communications are collected by accident.

Finally, we explained to lawmakers the tremendous value that this program yields. It has helped apprehend members of ISIS and respond to cyber-attacks. More recently, it illuminated activity of Mexican cartels trafficking fentanyl.

According to former Sen. Joe Lieberman (D-Conn.) and former Pennsylvania Gov. Tom Ridge (R), co-chairs of the Bipartisan Commission on Biodefense, Section 702 is “absolutely essential” for gathering intelligence related to biological terrorism. One can assume that today, it is in use protecting U.S. interests in Taiwan, Ukraine, and Israel.

Members should request classified briefings on cases illustrative of the 232,432 non-U.S. persons who were targeted under the provision in 2021. Once informed, most members find this surveillance to be uncontroversial.

What is on the radar of congressional overseers is the government’s subsequent use of the lawfully collected data under this program. Under current law, the government may query the existing 702 database for terms that are “reasonably likely to identify” a U.S. person and yield “foreign intelligence information…or evidence of a crime.” These queries, made without a warrant, help the FBI identify Americans with terrorist or criminal connections.

The ability to query the existing databases quickly is a valuable investigative tool that must be preserved. However, the courts have documented examples of impropriety, such as queries made for personal benefit, performed in large numbers, and related to activities protected by the First Amendment. To its credit, the FBI’s leadership has taken steps to reduce improper queries, and a 2023 court report found a 98 percent compliance rate. But that is probably too little, too late.

If Congress acts, it must do so wisely. House Intelligence Committee Chairman Mike Turner (R-Ohio) recently released a serious proposal that deserves consideration. Expect other bills to follow.

Members seeking a legislative compass should consult Annex B of the September 2023 report by the Privacy and Civil Liberties Oversight Board. Board members Beth Williams and Richard DiZinno recommend further changing the culture at the FBI, strengthening provisions related to unmasking Americans’ identities, codifying civil protections for queries, and enhancing congressional oversight of sensitive queries. Each recommendation would improve the law without jeopardizing the underlying asset.

Williams and DiZinno warn against congressional reforms that render full utilization of Section 702 “bureaucratically infeasible.” We agree, while also cautioning that the current political environment — including the recent leadership turmoil in the House — creates an opportunity for wolves in sheeps’ clothing to mask their dangerous anti-surveillance agenda behind the niceties of legislative reform. Congress shouldn’t fall for it.

One of us was exposed to data from this surveillance program at the operational level while serving in uniform and as a high-ranking defense official. The intelligence was critical to decision-making. Reasoned reform makes sense, but ill-informed, blanket opposition by those never having been personally responsible for analyzing and acting on intelligence is irresponsible.

Instead, members should seek out objective information with an eye toward providing the tools necessary to complete that mission, while also protecting Americans’ rights. On its best day, Congress can do both.  

Stephen Boyd and David Lasseter are partners at Horizons Global Solutions. Boyd served as an Assistant Attorney General and a chief of staff for members of the U.S. House and Senate. Lasseter, a reserve Marine intelligence officer, served as a Deputy Assistant Attorney General, Deputy Assistant Secretary of Defense, and a chief of staff in the House.