Letter to Congress on the impact of section 702

(Ed's Note: The House of Representatives this week is considering reinstating surveillance agencies that many former administration officials say are critical to U.S. national security. But they won't come without them controversy. Below is a letter sent to Congress this week, sponsored by 44 former cabinet members, about the importance of Congress not letting the offices expire.)

December 11, 2023

The Honorable Mike Johnson, Speaker of the House of Representatives

The Honorable Steve Scalise, Majority Leader of the House of Representatives

The Honorable Hakeem Jeffries, Minority Leader of the House of Representatives

Members of the Chamber of Deputies

Dear Mr. Speaker and Members:

As you well know, our nation is under significant threat today from wars in Europe and the Middle East, potential conflict with China in the Indo-Pacific, and the deadly flow of fentanyl across our southern border. Under these circumstances, we cannot restrict the US intelligence community either by failing to restore Section 702 of the Foreign Intelligence Surveillance Act or by restricting it in ways that would make it more difficult for the government to protect Americans. To be clear, Section 702 saves American lives and helps protect Americans from international terrorist attacks, foreign cyber attacks, overseas suppliers of fentanyl, and other threats to our national security. There is no substitute for that.

In that context, we, a bipartisan group of former national security officials who have served in Republican and Democratic administrations and on Capitol Hill, have written to urgently warn you of the devastating national security implications if Congress passes HR 6570, the Protect Freedom and End the unconditional supervision, as reported by the House Judiciary Committee.

We appreciate the serious effort that this Committee and the Standing Select Committee on Intelligence have made in evaluating Section 702 and consider what privacy and other protections are needed. However, in our view, the legislation reported by the Judiciary Committee is seriously flawed and would harm our government's ability to protect Americans in today's heightened threat environment. Below are some of our concerns.

Most notably, as written, HR 6570 could end the Section 702 program entirely. (d) of the bill enumerates the exclusive provisions of the law allowing for electronic surveillance, but – in what is likely a serious drafting error – does not include § 702. As a result, the bill could prohibit electronic surveillance through § 702 using the involuntary assistance of an electronic communications service provider. Ambiguous or poorly drafted legislation must not threaten America's security.

HR 6570 contains many other unworkable and dangerous provisions that have no basis in the Constitution, statute, or case law. Below are just a few examples:

The bill grants unprecedented rights to foreigners. Proposed § 702(f)(1) would extend to foreign spies and terrorists the same protections afforded to Americans simply because they might be (or once were) in the United States. This goes against the core principles of decades of surveillance laws carefully crafted by both Congress and the courts. Under the proposed provision, if a spy recruiter for the People's Republic of China was known to be in the United States, that person could not be subject to questioning under the proposed law if (unlikely) they qualified for one of the draft's limited options. exceptions. Moreover, by extending this “protection” to foreign targets that communicate with each other but not with any American, the bill would drastically limit the government's ability to warn Americans that they are the target of terrorist threats, malicious cyber activity, or espionage. operation. Providing foreigners with “protection from inquiry” will do nothing to help Americans' privacy, but instead put Americans at risk.

The bill would ban the inquiries that have kept our nation safe. The bill would prohibit the government from querying the Section 702 database for terms associated with Americans unless it first receives a court order. Even if the government could establish probable cause — circumstances rarely immediately present in the fast-moving worlds of terrorists, spies and ransomware gangs, where the government often has only a tip — it would take days to do so. In short, if the intelligence community found out that a terrorist from overseas had been talking to someone inside the United States, they couldn't search their database to see if there was an imminent threat to the United States. This will put American lives at risk. Moreover, as written, this warrant requirement would apply not only to the FBI — which is subject to other specific provisions based on previous disputes — but also to the entire intelligence community. This provision, if enacted, would greatly harm the foreign intelligence mission of the NSA, CIA, and NCTC.

The bill would seriously disrupt cybersecurity efforts. As written, the cybersecurity “exception” in the order is dangerously narrow and will make it nearly impossible to protect Americans who are victims of foreign cyberattacks every day, let alone recover ransomware payments. Proposed section 702(f)(2)(B)(i)(IV) is intended to allow queries using a “known cyber threat signature.” However, it's not clear what a “known cybersecurity threat signature” even means. In any case, it would apparently not cover using the real names, IP addresses or email addresses of the targets of malicious cyber attacks. Cyber ​​security experts know that these terms are exactly what is needed to reveal the type and scope of a foreign cyber attack. The result of enacting this provision is that the government will simply be unable to warn American citizens, businesses, hospitals, critical infrastructure owners, schools and others of many imminent cyber threats.

As former national security officials, we believe that the House cannot responsibly pass HR 6750. In contrast, HR 6611, as reported by the Permanent Select Committee on Intelligence, represents a thoughtful alternative approach to reforming Section 702. Reasonable people can disagree on the details of the various reforms that would may have been needed even though they are contained in the HPSCI Bill. However, it represents a rigorous approach to the challenges and attempts to responsibly balance privacy and the security of our country. Enacting HR 6750, on the other hand, will greatly reduce our government's efforts to protect Americans.

Best regards,

Keith Alexander Former director of the National Security Agency Chuck Alsup Former Deputy Deputy Director of National Intelligence
Stewart Baker Former Assistant Secretary for Policy, Department of Homeland Security George C. Barnes Former Deputy Director of the National Security Agency William Banks Former Chairman of the American Bar Association's Standing Committee on Law and National Security Jeremy Bash Former Chief of Staff of the Department of Defense
Timothy Bergreen Former Staff Director, House Permanent Select Committee on Intelligence Andrew Borene Former Group Chief, National Counterterrorism Center
Robert J. Butler Former Deputy Assistant Secretary of Defense for Space and Cyber ​​Policy James Clapper Former Director of National Intelligence
Gary P. Corn Former Staff Judge Advocate, US Cyber ​​Command John Costello Former Chief of Staff, Office of the National Cyber ​​Director
George W. Croner Former Chief Litigation Counsel, National Security Agency William P. Crowell Former Deputy Director of the National Security Agency
J. Michael Daniel Former Cyber ​​Security Coordinator, National Security Council Courtney Simmons Elwood Former Chief Counsel, Central Intelligence Agency
Daniel R. Ennis Former Director, Threat Operations Center, National Security Agency William Evanina Former Director of the National Counterintelligence and Security Center
Bishop Garrison Former Senior Advisor to the Secretary of Defense Michael Geffroy Former General Counsel, Senate Intelligence Committee
Glenn S. Gerstell Former General Counsel of the National Security Agency Jane Harman Former ranking member, House Permanent Select Committee on Intelligence
Adam S. Hickey Former Deputy Assistant Attorney General Jamil N. Jaffer Former Associate Counsel to President George W. Bush
Richard H. Ledgett, Jr. Former Deputy Director of the National Security Agency Michael A. LeFever Former Director of Strategic Operational Planning, National Counterterrorism Center
Rachel Carlson Lieber Former Deputy General Counsel, Central Intelligence Agency Robert S. Litt Former General Counsel, Office of the Director of National Intelligence
Letitia Long Former Director, National Geospatial-Intelligence Agency Mike McConnell Former Director of National Intelligence
Michael Morell Former Deputy Director of the Central Intelligence Agency Michael B. Mukasey Former United States Attorney General
Leon E. Panetta Former Secretary of Defense James Petrila Former Deputy General Counsel, Central Intelligence Agency
Elizabeth Rindskopf-Parker Former General Counsel, Central Intelligence Agency Harvey Rishikof Former Legal Counsel, Federal Bureau of Investigation
Rod J. Rosenstein Former Deputy Attorney General Norman T. Roule Former Director of National Intelligence for Iran, Office of the Director of National Intelligence
Teresa H. Shea Former Director of Signal Intelligence, National Security Agency Bryan Smith Former Budget Director, House Permanent Select Committee on Intelligence
Suzanne E. Spaulding Former Assistant Secretary of Homeland Security Megan H. Stifel Former Director of Cyber ​​Policy, US Department of Justice
Jan E. Tighe Former Director of Naval Intelligence Frances Townsend former counterterrorism and homeland security adviser to President George W. Bush
Joseph L. Votel Former Commander, United States Central Command Thomas Warrick Former Deputy Assistant Secretary for Counterterrorism Policy, Department of Homeland Security
B. Edwin Wilson Former Deputy Assistant Secretary of Defense for Cyber ​​Policy James A. Winnefeld, Jr. Former Vice Chairman, Joint Chiefs of Staff
Julie Myers Wood Former Assistant Secretary of Homeland Security for Immigration and Customs Enforcement

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