Listening to our enemies

One of the many ways last weekend’s drone and missile attacks on Israel could have been worse: If Iran’s rulers had instructed their U.S.-based operatives to simultaneously carry out a terrorist attack, and our intelligence agencies failed to learn about it.

Preventing such a catastrophe requires that those intelligence agencies have the ability and authority to surveil – think wiretap – terrorists abroad and their communications with operatives in the U.S.

Which gets me to a little good news: The House last week, on a bipartisan basis, took a step to ensure that we don’t lose what may be our most important defensive weapon against terrorists eager to slaughter Americans on American soil.

I’m referring to the vote in favor – 147 Democrats and 126 Republicans – of the Reforming Intelligence and Securing America Act, the bill to reauthorize the Foreign Intelligence Surveillance Act (FISA).

Senate approval is necessary before an April 19 deadline. That’s likely though hardly guaranteed.

Most significant is FISA Section 702 which permits the government to electronically monitor the communications of foreign nationals overseas.

If such foreigners are talking to individuals in the U.S., that information also gets collected and stored in a database that can be searched by American intelligence officials.

The legislation passed by the House contains more than 50 reforms to the statute, including several that strengthen oversight and impose new limitations on who can query the database. It also adds serious criminal penalties for abuses.

“This amendment is not about Americans’ inboxes and outboxes,” emphasized House Intelligence Committee Chairman Mike Turner. “This is not about Americans’ data. This amendment is about Hezbollah’s data, Hamas’ data, and the Communist Chinese Party’s data.”

To search the database for evidence that an American citizen has committed a crime would require a court order based on probable cause.

So why is this controversial? For some Republicans, it’s largely because of the abominable behavior over recent years of too many FBI officials (think James Comey, Andrew McCabe, and Peter Strzok) and former intelligence officials (such as the 51 who lied to the public about Hunter Biden’s laptop to influence a presidential election).

Lining up with these Republicans are such far-left Democrats as Rep. Pramila Jayapal and Sen. Elizabeth Warren who seem most concerned about protecting the privacy of foreigners in America, not least those here illegally.

Should illegal aliens enjoy the same Constitutional rights as American citizens? I don’t think so but leave that discussion for another day.

On the House floor last week, Chairman Turner reminded his colleagues that the foreign operatives who planned and carried out the attacks of Sept. 11, 2001, were “in the United States and communicating with al Qaeda” overseas.

But the U.S. government at that time was “not spying on al Qaeda, and we did not see who they were communicating with in the United States.”

The threat level is extremely high now. Among the reasons: Over the past three years, thanks to the Biden administration’s policies, pretty much anyone who wants to cross the southern U.S. border has been able to do so.

That likely means that in America today there may be dozens, hundreds, or even thousands of people connected to al Qaeda, ISIS, the jihadi regime in Tehran, the Communist Party of China, and Moscow.

An argument can be made that even with 702, we are not doing enough spying. One example: Rep. Dan Crenshaw offered an amendment to the bill that would authorize surveillance of Mexican drug cartel affiliates and the Chinese companies that make precursors for fentanyl. It passed – but with 83 Republicans and 60 Democrats voting against it.

House Speaker Mike Johnson supported reauthorizing 702 as does President Biden. Former President Trump earlier this month opposed it on the grounds that “IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!”

Mr. Trump is apparently referring to the FBI’s improper surveillance of Carter Page, an advisor to his 2016 campaign. But that misconduct was not related to 702. It was an instance of lying to the FISA court, for which the current legislation provides penalties.

Speaker Johnson said the reforms in the bill would “prevent another phony Russian Hoax investigation.”

If Mr. Trump returns to the White House, he’ll find 702 essential.  In 2022, 59% of the articles in the President’s Daily Brief (PDB) contained 702 information reported by the National Security Agency.

According to a fact sheet from the Office of the Director of National Intelligence,
“Section 702-acquired information has been used to disrupt “planned terrorist attacks at home and abroad and contributed to the successful operation against Ayman al-Zawahiri in 2002.”

Section 702 also has identified “multiple foreign ransomware attacks on U.S. critical infrastructure.”

A little legislative history: Soon after the terrorist attacks of Sept. 11, 2001, the Intelligence Community made a strong and ultimately successful case for expanded surveillance authority.

George W. Bush was then in the White House. Congressional Democrats, more than Republicans, tended to be skeptical about giving America’s spies this tool, citing privacy concerns. The think tank where I’ve long hung my hat spent much time and energy explaining to Democrats why it was necessary to grant such authority in the interest of national security.

In 2017, Congress – with President Trump’s support – reauthorized Section 702 for six years with some restrictions.

The new bill, as noted above, contains additional guardrails, and reauthorizes FISA for only two years.

That ensures that this debate will reignite under the next president or – if the winner of the November election doesn’t complete his term in office – whoever follows him.  That, too, is a discussion for another day.

Clifford D. May is founder and president of the Foundation for Defense of Democracies (FDD) and a columnist for the Washington Times.