FISA provisions expiration endangers national security

On Oct. 12, 2000, al Qaeda terrorists attacked the USS Cole shortly after it docked in Aden, Yemen, killing 17 U.S. sailors. The attack showed a systemic failure of the United States to identify the depth of the threat of international terrorism to U.S. national security interests, and our inability to address threats effectively, which in this case resulted in deadly consequences.  Less than one year later, on Sept. 11, 2001, al Qaeda would show us again all the tragic consequences of letting our guard down against ongoing international threats to our security.

The fact that the U.S. has been able to prevent another major attack is a result of the work that FBI agents and others who serve in our government do every day. And as the technology and methods of terrorists have grown more sophisticated, FBI agents must use even more sophisticated techniques to protect the country. 

Shockingly, in less than a month, FBI agents may lose some of the most essential tools in their arsenal of defensive weapons needed to detect and thwart terrorist attacks unless Congress reauthorizes key provisions of the Foreign Intelligence Surveillance Act (FISA). The provisions that will expire on March 15 are used by FBI agents in sensitive counterintelligence and counterterrorism investigations, and Congress must not allow them to lapse, even temporarily. 

FBI Director Christopher Wray said, “The fact that we have not suffered another 9/11-scale attack is not just luck. It is the product of an enormous amount of very, very hard work and diligence by thousands of professionals. … New technologies now allow ISIS and others to recruit, radicalize and direct people worldwide much more easily and more remotely than ever before, including right here in the U.S.” 

While Congress debates FISA reform, it is important to not lose sight of the fact that all of the FBI’s activities are consistent with their obligation to protect the constitutional rights and freedoms of citizens. The expiring FISA provisions are largely consistent with the tools available in normal criminal investigations, and collect information and data in ways that are designed to protect the privacy of Americans.

To eliminate the FISA process jeopardizes a key component of our national security posture.  Sen. Lindsey Graham (R-S.C.) once correctly noted that anyone who eliminates “[the FISA] program is going to be partially responsible for the next attack.” He consistently has advocated to improve these tools “while maintaining our ability to monitor foreign surveillance directed against our economic and national security interests.”  

The FBI Agents Association wrote to Congress recently to encourage renewal of the expiring FISA provisions, and stated that an FBI agent who helps conduct counterterrorism investigations observed, “Sophisticated techniques like roving wiretaps and the ability to access business records are instrumental to how I do my work. We use them to help thwart attacks by foreign terrorist organizations and home-grown violent extremists. I think that our work, supported by these tools, has helped save lives. Our partners in state and local law enforcement depend on the FBI and our techniques as well. I am concerned that losing them would make it harder for us to do our jobs and would make our country less safe.”

Additionally, as President Trump stated when he signed the most recent FISA reauthorization into law, “[W]e cannot let our guard down in the face of foreign threats to our safety, our freedom, and our way of life.” 

The expiring FISA authorities are effective, sensible and constitutional. More importantly, they are some of the most important tools used on a daily basis by the FBI in conducting its counterterrorism investigations. Congress has an obligation to the safety of the American people to renew these provisions before they expire on March 15.

Kirk S. Lippold is a retired U.S. Navy officer who was the Commanding Officer of USS Cole (DDG 67) when it survived a suicide terrorist attack by al Qaeda.  

Thomas O’Connor is a former FBI Special Agent who spent 22 years in the FBI focused on counterterrorism.