Intel community scrambling to defend contentious spy tool as lawmakers decry ‘mass surveillance’

EXCLUSIVE: Amid a congressional stalemate, the U.S. intelligence community is straining to spotlight the critical nature of Section 702 of the Foreign Intelligence Surveillance Act without providing so much public detail that its targets adapt — while also fighting widespread misunderstandings about the law within Congress.  

“In trying to describe the value, you also provide to your adversary, whoever they are, a sense of how you’re using the authority,” Christine Abizaid, director of the National Counterterrorism Center told FOX in an exclusive interview. “That’s why it’s so painful to get meaningful examples from us.” 

Section 702 allows warrantless surveillance of foreigners outside the U.S. — people who are not protected by the Fourth Amendment. American citizens and people within the United States cannot be targeted under the authority, but if they happen to be on the other end of talks with a known foreign terrorist target, their electronic communications may be swept up. However, to take further investigative steps against a U.S. person requires a warrant under existing law. 

The contentious spy authority is credited with foiling multiple terror plots on U.S. soil, mitigating cyberattacks on critical U.S. infrastructure, and stopping weapons of mass destruction from reaching foreign actors. Recent examples include the response to the 2021 Colonial Pipeline cyberattack and the 2022 Kabul drone strike which killed the last remaining 9/11 architect, Ayman al-Zawahri.

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Speaker Mike Johnson, R-La., cautioned lawmakers against an amendment on warrant requirements as the House of Representatives readies to renew a key federal government surveillance tool. (J. Scott Applewhite)

But significant past abuses of the program, which preceded current reforms, spurred critics to malign Section 702 as a vehicle for spying on U.S. citizens. Since the FBI implemented a series of changes in 2021 and 2022, queries of U.S. persons have dropped by 93%. The tool has also been conflated with a different section of the Foreign Intelligence Surveillance Act — FISA Title 1 — which exists as permanent law and is not subject to renewal but became a political target after it was used to improperly surveil Trump campaign associate Carter Page in 2016.  

On Wednesday, House republicans derailed Speaker Mike Johnson’s effort to renew the legislation after former President Trump confused Section 702 with FISA Title 1, directing lawmakers to tank the bill on Truth Social. “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!” he wrote. 

In 2018, when Trump reauthorized Section 702, he tweeted, “Just signed 702 Bill to reauthorize foreign intelligence collection. This is NOT the same FISA law that was so wrongly abused during the election.”

The difficult education campaign surrounding Section 702 — now underway by the White House, national security officials, and bipartisan congressional defense hawks — was hastened by a House GOP proposal conditioning more reforms already built into the renewal package following months of negotiations, with an additional amendment imposing a ‘secondary’ warrant requirement. Intelligence analysts would need to clear the new threshold before combing through lawfully collected data already in the U.S. government’s possession. The proposed change would significantly delay any U.S. counterterrorism response, effectively rendering the tool useless, according to national security officials.  

The FBI has used FISA to investigate Americans more than 278,000 times in 2021, including Jan. 6 protesters and George Floyd demonstrators (Getty)

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“This would be as if, once you’ve already obtained the book, you had to go back to a federal judge to turn and look at one more page,” Josh Geltzer, deputy counsel to the president and legal advisor to the National Security Council, told FOX. “One wants to know if these targets of 702 collection have been in touch with some Americans because they are trying to kill that American, because they are trying to recruit that American as a spy, or because that American is actually a company that they’re about to hack.” 

The political challenge was on full display as lawmakers returned to Congress this week. Rep. Warren Davidson, R-Ohio, handed out flyers to colleagues imploring support for the amendment. The flyers read, “Dear colleague: This week, we have an opportunity to make a clear statement to the American people: Congress supports your rights. The days of unconstitutional mass surveillance and SPYING on American citizens must end now. Please show your support for the 4th Amendment by wearing this pin.”

A view of the lecture before US Attorney General William Barr holds a press conference about the release of the Mueller Report at the Department of Justice April 18, 2019, in Washington, DC.  (Brendan Smialowski)

The White House is now making its private opposition to the proposal public. 

“Some of these plots were a couple years in the making when we discovered them… speed is of the essence,” NCTC Director Abizaid said. “When you think about the way that a threat presents today, how reliant it is on us building out a picture of a network, tying individuals to each other — the ability to do that network analysis, figure out where the nodes of vulnerability are, where the high value targets reside, the best way to get at them — Section 702 is a key piece.” 

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Since the previous renewal under former President Trump, congressional turnover has contributed to widespread misunderstanding about the law, leading to a recent alliance between progressive Democrats and strongly conservative House Republicans. For months, national security officials have been trying to stave off support for unworkable changes by detailing recent intelligence operations in which Section 702 has been used, lobbying lawmakers in classified settings.

Abizaid told FOX that Section 702 is critical to current U.S. defenses against a range of ongoing threats — from fentanyl smuggling operations at the U.S. southern border, to malign activities by North Korea and China, to underground threats from al-Qaida and ISIS across the globe.  

“In the post-October 7th environment, that sort of diffuse array of Al-Qaeda and ISIS threats is layered on top of a pretty aggressive Iranian strategic threat,” she said. “When you think about the volumes that we’re concerned about just from a pure immigration standpoint on the southern border, making sure we have all the available intelligence to know who’s coming in at any given time and that we can stop them if we know they are bad, 702 is going to be a piece of that puzzle.”  

Members of the House of Representatives participate in the vote for Speaker on the first day of the 118th Congress in the House Chamber of the U.S. Capitol Building on January 03, 2023 in Washington, DC. (Win McNamee)

In 2022, 100% of the President’s intelligence priorities reported by the NSA were supported by Section 702 information, 59% of articles in the President’s Daily Brief contained Section 702 information, and 40% of products in the CIA’s World Intelligence Review Daily relied on Section 702 information. From 2018 to 2022, 70% of successful weapons and counterproliferation disruptions by the CIA were supported by Section 702 information.  

The greatest example, Abizaid says, is if Section 702 existed prior to 9/11, the deadliest terror attack in human history might have been prevented. The US intelligence community had no ability at the time to establish a connection between 9/11 hijacker Al Midhar, who was operating in California, and an Al-Qaeda safe house in Yemen. The intelligence community had collected the Yemen end of the communications, but had no way of determining the Al Midhar’s number or location on the other end. “That’s the kind of thing that we specifically created the 702 authority to help us do,” she said. 

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If the House passes the renewal with the proposed amendment, it is unlikely to garner support in the Democrat-led Senate. However, officials warn another temporary extension will undermine confidence among the American people and companies which are compelled to work with the U.S. government under the oversight of four congressional committees, the executive branch, and the FISA court.  

“This deprives them of that confidence, constantly coming up to the deadline, having some sort of short-term reauthorization,” Geltzer said. “So, it is possible yes, but it’s really bad for the country, really bad for the executive branch, really bad for the private sector.”