With Deadline Approaching, former Senior National Security Leaders Push for Section 702

OPINION — The House of Representatives on Friday passed a bill to reauthorize and reform Section 702 of the Foreign Intelligence Surveillance Act.  The crucial national security surveillance program allows the U.S. government to collect communications of non-Americans abroad, without a warrant, for foreign intelligence purposes.  The program is set to expire April 19, and the House vote takes one step towards ensuring it doesn’t sunset then.  

Critics of the authority have raised privacy concerns since it also collects communications of Americans in contact with targeted foreigners.  These concerns were heightened after the revelation that FBI analysts improperly used the repository of FISA intelligence to access information about Americans.

The new bill aims to alleviate these concerns, permitting the extension of Section 702 for two years, instead of the full five-year authorization that was first proposed. However, a bipartisan amendment that would require law enforcement to obtain warrants to search communications of U.S. citizens and permanent residents collected by the authority failed.

The bill has cleared the main obstacle of passing the House, where Speaker Mike Johnson has tried – and failed – three times to get it through. It now goes to the Senate for approval before it can be signed by President Joe Biden.

A group of former senior national security officials, including several Cipher Brief Experts, signed an open letter to the Senate urging approval of the reauthorization.

---

April 17, 2024

To: Members of the United States Senate

FISA Section 702

As former senior national security officials, we urge the United States Senate to adopt The Reforming Intelligence and Securing America Act of 2024 (H.R. 7888 or RISA), so that Section 702 of the Foreign Intelligence Surveillance Act (FISA) does not expire at midnight this Friday.

The RISA Act would extend for two years one of the most important operational statutes for national security. The bill contains the most extensive set of reforms and protections in the 16-year history of Section 702. Even so, we understand that some of these reforms are controversial. Indeed, not all of the undersigned necessarily agree with all of the provisions included in, or omissions from, RISA. But we all strongly feel that, given the nature of foreign threats, it would be a mistake to let Section 702 lapse, even for a short period. RISA presents the only legislative vehicle to avoid that mistake.

A statutory lapse may well trigger judicial challenges to ongoing operations under the current certifications approved by the Foreign Intelligence Surveillance Court. The leaders of the Intelligence Community have been clear that we currently face imminent, complex and diverse threats. This is not the time to take risks with national security. We note that even slight delays in surveillance and analysis could have grave consequences in particular for counterterrorism and cybersecurity efforts– fields in which adversaries arise and move quickly.

RISA would establish a commission for a comprehensive review of FISA in light of technology and the reforms mandated by the bill. And nothing prevents Congress at any time from adopting further changes in light of experience. But failing now to adopt RISA – whether viewed as a prudent compromise or an imperfect solution – would endanger our national security.

Respectfully,

Stewart Baker

Former General Counsel, National Security Agency

Jamie Barnett

Rear Admiral USN (Retired)

George C. Barnes

Former Deputy Director, National Security Agency

John B. Bellinger, III

Former Legal Advisor to the National Security Council

Timothy Bergreen

Former Staff Director, House Permanent Select Committee on Intelligence

Andrew M. Borene

Former Group Chief, National Counterterrorism Center

Robert J. Butler

Former Deputy Assistant Secretary for Space and Cyber Policy, Dept. of Defense

Mark D. Cheng

Former Executive Director, President’s Intelligence Advisory Board

James R. Clapper, Jr.

Former Director of National Intelligence

J. Michael Daniel

Former US Cybersecurity Coordinator

John Costello

Former Chief of Staff of the Office of the National Cyber Director

George W. Croner

Former Principal Litigation Counsel, National Security Agency

William P. Crowell

Former Deputy Director, National Security Agency

Joan Dempsey

Former Deputy Director of Central Intelligence for Community Management

John Eisenberg

Former Legal Advisor to the National Security Council

Daniel R. Ennis

Former Director, Threat Operations Center, National Security Agency

Courtney Simmons Elwood

Former General Counsel, Central Intelligence Agency

William Evanina

Former Director, National Counterintelligence and Security Center

Bishop Garrison

Former Senior Advisor to the Secretary of Defense

Michael Geffroy

Former General Counsel, Senate Select Committee on Intelligence

Glenn S. Gerstell

Former General Counsel, National Security Agency

Jane Harman

Former member, U.S. House of Representatives

Adam S. Hickey

Former Deputy Assistant Attorney General, Dept. of Justice

Jamil N. Jaffer

Former Associate Counsel to President George W. Bush

Alex Joel

Former Civil Liberties Protection Officer, Office of the Director of National Intelligence

Jason Klitenic

Former General Counsel, Office of the Director of National Intelligence

James A. Lewis

Former Senior Intelligence Advisor, Department of Commerce

Rachel Lieber

Former Deputy General Counsel, Central Intelligence Agency

Robert S. Litt

Former General Counsel, Office of the Director of National Intelligence

Letitia A Long

Former Director, National Geospatial-Intelligence Agency

Don Martin

Former General Counsel, Senate Select Committee on Intelligence

Michael Morell

Former Deputy Director, Central Intelligence Agency

Michael B. Mukasey

Former Attorney General of the United States

Elizabeth Rindskopf Parker

Former General Counsel, Central Intelligence Agency

James Petrila

Former Associate General Counsel, Central Intelligence Agency

Marc Polymeropoulos

Former Central Intelligence Agency Senior Intelligence Service

Benjamin A. Powell

Former General Counsel, Office of the Director of National Intelligence

Harvey Rishikof

Former Senior Advisor to the Director of National Counterintelligence

Rod J. Rosenstein

Former Deputy Attorney General

Norman T. Roule

Former National Intelligence Manager for Iran, Office of the Director of National Intelligence

Teresa H. Shea

Former Signals Intelligence Director, National Security Agency

Bryan Smith

Former Budget Director, House Permanent Select Committee on Intelligence

Suzanne Spaulding

Former Undersecretary, Department of Homeland Security

Megan H. Stifel

Former Director for International Cyber Policy, The White House

Jan Tighe

Former Director of Naval Intelligence

Frances Townsend

Former Counterterrorism and Homeland Security Advisor to President George W. Bush

Joseph L. Votel

General, US Army (Ret), Former Commander, US Central Command

Thomas S. Warrick

Former Deputy Assistant Secretary for Counterterrorism Policy, Dept. of Homeland Security

Matthew Waxman

Former Deputy Assistant Secretary of Defense

B. Edwin Wilson

Former Deputy Assistant Secretary of Defense for Cyber Policy

James A. Winnefeld Jr.

Former Vice Chairman of the Joint Chiefs of Staff

Julie Myers Wood

Former Assistant Secretary for Immigration and Customs Enforcement, Dept. of Homeland Security

Mark D. Young

Former Executive Director, United States Cyber Command

Have a perspective to share based on your experience in the national security field?  Send it to [email protected] for publication consideration.

Read more expert-driven national security insights, perspective and analysis in The Cipher Brief