"The U.S. faces threats from every corner of the globe. Chinese-made fentanyl and its chemical precursors pour through the southern border, and the Communist Party menaces in the Indo-Pacific. Iran's terrorist proxies, including Hamas and Hezbollah, fire on American allies and troops in the Mideast. North Korea tests ballistic missiles. Events in Ukraine continue. Each of them endangers Americans at home to boot.
America's security depends on our ability to understand and respond to these threats. Yet Section 702 of the Foreign Intelligence Surveillance Act, or FISA, the primary method for gathering intel against such threats, expires Dec. 31.
Letting it lapse over misplaced concerns about Americans' privacy would be an egregious mistake.
First enacted in 2008 to restore longstanding capabilities -- and subsequently reauthorized twice by bipartisan majorities -- Section 702 permits the federal government to conduct electronic surveillance of foreigners located outside the country.
The statute explicitly prohibits targeting any American without an order from a federal judge and likewise prohibits "reverse targeting," or surveilling a foreigner abroad as a pretext for targeting an American.
Yet when the government gathers a non-American's communications abroad, it's also privy to his communications with Americans. This is a feature, not a bug. Foreign targets could be terrorists or intelligence officers, making it wholly reasonable to examine their communications with Americans, who could be bad actors themselves, accomplices or intended victims. Such examination is done by querying the Federal Bureau of Investigation's Section 702 database, a subset of lawfully collected intelligence on non-Americans abroad.
To be sure, FISA has endured its fair share of criticism over the years owing to abuse by bad actors within the FBI. Some of that criticism has been deserved. The agency has occasionally conducted overbroad searches, largely as a result of innocent errors or efforts to identify American victims of foreign attacks.
In other instances, however, the statute's misuse has been intentional. Perhaps the most notorious example was the FBI's surveillance of Carter Page, Donald Trump's campaign adviser in 2016, as part of the agency's yearslong probe into Mr. Trump's campaign ties with Russia. The government erroneously suggested Mr. Page was a Russian asset; an FBI lawyer then intentionally misled the court, permitting continued surveillance of Mr. Page. That malign conduct, however, arose from a lie to the FISA court, not from any use or misuse of Section 702.
Intelligence gathered by targeting non-Americans abroad is essential to national security. According to a U.S. intelligence community report, the information collected through Section 702 contributed to more than half the classified items in the president's daily high-priority intelligence and threat briefing in 2022.
Yet congressional critics, such as Sen. Ron Wyden (D., Ore.) and Rep. Andy Biggs (R., Ariz.), are holding up efforts to reauthorize Section 702. They argue that requiring a warrant for searches of already lawfully collected data is necessary to protect the privacy of ordinary Americans, and that requiring such a warrant imposes no substantial burden on investigators.
Yet such a requirement for every query involving Americans in the FBI's Section 702 database would be both nonsensical and unduly burdensome. According to the Justice Department, FBI-searchable information on Americans amounts to less than 4% of the targets in the overall Section 702 database, all of which has already been gathered by lawful means. Moreover, requiring the government to show probable cause that evidence of a crime exists before the evidence in the database can be examined is itself illogical. The government conducts investigations, including queries of the Section 702 database, to determine whether there is evidence of probable cause -- not after such evidence is already in hand.
Further, the Constitution doesn't mandate that law enforcement present an application to a judge to search lawfully collected information. That's for good reason: The process would simply take up time better spent gathering intel critical to the nation's security.
Congress should instead consider ways to prevent intelligence agency failures. Legislators could require FBI agents to get more senior approvals for sensitive inquiries, including from an official that directly reports to the FBI director. It likewise could impose strict disciplinary actions on those found to have willfully conducted improper searches. Such safeguards would simultaneously better protect Americans' privacy and security.
More than two decades ago, the government misread into the law a requirement that intelligence gathering and law enforcement be strictly separated, resulting in what became known as "the wall." This led to the CIA failing to share critical information it had on two terrorists, Nawaf al-Hazmi and Khalid al-Mihdhar, who had traveled to the U.S. in January 2000 and previously been photographed at an al Qaeda meeting in Malaysia. They were among the terrorists who hijacked Flight 77, which struck the Pentagon on Sept. 11. The FISA Court of Review would later conclude the statute required no such wall.
Hypothetical concerns over privacy shouldn't divert Congress from its duty to protect Americans. Allowing the law to expire or hamstringing our national-security agencies with needless regulations is unacceptable. If Congress does so and returns to a pre-9/11 mindset, we will all know who is to blame.
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Mr. Mukasey served as U.S. attorney general, 2007-09, and as a U.S. district judge, 1988-2006. Mr. Jaffer is the founder and executive director of the National Security Institute at the Scalia Law School of George Mason University." [1]
1. We Can't Return to a Pre-9/11 Mindset on Foreign Surveillance. Mukasey, Michael B; Jaffer, Jamil N. Wall Street Journal, Eastern edition; New York, N.Y.. 24 Nov 2023: A.17.
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