OPINION — In 2011, I took command of our counter-terrorism forces, and the most prolific and dangerous threat we faced at that time came from Al Qaeda in the Arabian Peninsula—operating exclusively from Yemen. This group was responsible for influencing multiple terrorist attacks, including the Little Rock Recruiting Station shooting, the attempted Northwest Airlines Flight 253 bombing over Detroit, and the cargo plane bombing plot.
With an accelerating trajectory, posing significant risks to Americans and American interests, they became our exclusive focus. We collaborated closely with the intelligence community and our Yemeni partners to produce the information needed to disrupt their planning and operations. Included in this was critical intelligence derived from the authorities granted through Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Today, U.S. warships and other international vessels are being targeted by Houthi rebels operating in Yemen. These attacks are but a few of the many horrific events now unfolding in the Middle East that remind me how critical intelligence reports are to our long-term security. My own experience as the Commander of all our Special Operations Forces and later as the Commander of our military operations across the Middle East, the Levant, and Central and South Asia highlighted how effective intelligence gathering is a unique asymmetric advantage that we must maintain as we control an increasingly complex array of threats.
The most valuable of those reports came from surveillance of foreigners under a law that will expire at the end of this month, December 31, 2023, unless Congress extends it. Since I know the critical importance of that statute to our national security, I am concerned that the renewal is not the certainty that it should be.
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It is telling that at this year’s annual threat hearings in Congress, Avril Haines, the Director of National Intelligence, concluded her testimony about the vast array of national security risks by urging the renewal of that statute, Section 702 of FISA.
It would hardly be an overstatement to say that the level and complexity of today’s foreign threats present the most severe challenges to our country’s well-being and future since the height of the Cold War—and that includes the immediate post-9/11 era in which FISA 702 was initially passed into law.
The surveillance program established under that statute—because of its agility and ability to target specific terrorists, ransomware criminals, foreign spies, and leaders of adversary nations—is precisely what we need to understand and respond to these extreme challenges.
In addition to tactical intelligence, information gathered under Section 702 has been used to track precursor chemicals shipped from China to fentanyl labs in South America, to tip off American companies about foreign ransomware attacks, to expose Russian atrocities in Ukraine, and to understand how China competes unfairly by stealing information from our tech sector.
The statute works because the world—including our adversaries—uses American telephone and internet systems to communicate to an overwhelming degree.
Section 702 allows the intelligence community access under court-approved procedures to foreign intelligence targets’ emails and other communications when they use those American platforms. No other statute allows this, and other forms of intelligence collection (while vital in their own way) have their limitations. This means that Section 702 is irreplaceable as a source of foreign intelligence. A small detail is proof: The executive branch recently disclosed that they derive almost 60% of the intelligence in the President’s Daily Brief from Section 702.
Even though most members of Congress would agree that Section 702 has helped our nation address a wide array of threats in the 15 years of the law’s existence, it now seems that the statute’s reauthorization is not assured. Some of that uncertainty depends on how much Congress must tackle before year’s end. But most of the hesitation stems from one specific aspect of the statutory program—and that’s the fact that the communications of some Americans are unintentionally but inevitably captured in the surveillance of foreign targets.
As one might expect, most foreign intelligence targets communicate uniquely with other foreigners.
Some, however, are in contact with Americans. That contact might be utterly irrelevant to the intelligence collection undertaken by the four agencies authorized under Section 702, namely the National Security Agency, the Central Intelligence Agency, the Federal Bureau of Investigation, and the National Counter Terrorism Center. But if, for example, a foreign spy working for the Chinese government emailed an American employee of a defense contractor in a blackmail attempt, that email could be of interest to our counter-espionage efforts. The extent of our government’s ability to review an American’s email is the subject of extensive regulation and ongoing debates.
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As a former military officer, I don’t think my experience puts me in a particularly privileged position to address the privacy concerns surrounding the debate about Section 702’s reauthorization, especially since most of the focus is on the Federal Bureau of Investigation. My experience as a senior military commander charged with fighting terrorism abroad did, however, give me the personal knowledge to realize the efforts of our military and those of the allies we support would be rendered vastly more difficult without the invaluable tool that FISA Section 702 provides. Congress must renew this fundamental authority in a manner that does not impinge on its operational effectiveness. This means keeping it largely intact and adjusting only as needed for constitutional and rule-of-law constraints in light of potential past abuses and misuses of this vital authority.
It is my profound hope that Congress and the Biden administration can find a way to address the privacy and other concerns raised by the prospect of reauthorizing Section 702 while keeping this critical statute on the books for our national security. I know that without it, I couldn’t have done my job in the military to stop our adversaries and keep our nation safe.
This column by Cipher Brief Expert General Joseph Votel (ret.) was first published by our friends at the Center for Ethics and Rule of Law at the Unversity of Pennsylvania
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