Even Republican Senator Mike Lee concedes, “We make it easy to spy on foreign adversaries – with good reason. The Fourth Amendment doesn’t apply to them.”
What Senator Lee fails to add is literally tens of thousands of ‘U.S. persons’ (anyone here and Americans abroad) are communicating every year with foreign adversaries; requiring a warrant before each of those suspicious communications are queried to find the few among the many plotting terror and cyber-attacks would recklessly endanger American lives.
For perspective, the eleven FISA court judges approved a total of 371 warrants during 2023.
The FBI has opened about 4,000 investigations into international terrorism since the October 7, 2023 attack by Hamas that murdered 1,200 people in Israel, including Americans. Iran and its proxies continue to attack our troops in the Middle East and our ships in the Red Sea. Pro-Hamas protesters here in America are chanting, “Death to America.” Terror-watch listed people are illegally crossing our borders. How many are not being caught due to President Biden’s open-borders policy and are now communicating with their terror masters abroad?
Indeed, Section 702 of FISA has been abused. The Reforming Intelligence and Securing America Act (RISA), which last week passed in the House and is now before the Senate, is designed to help prevent those abuses from reoccurring.
It bars political appointees from taking part in warrantless query searches. It adds a notification requirement to House and Senate majority and minority leadership and House and Senate judiciary and intelligence committee leaders when a query likely involves a member of Congress (to preclude a query being motivated by politics). It reduces the number of FBI agents who can query the data from 10,000 to 550. It requires that all queries be audited for compliance. It allows House and Senate majority and minority leaders (or two staff members on their behalf) to attend warrant application hearings.
And note that Section 702 was not used by Obama’s political appointees at the FBI to obtain warrants to spy on Trump and his campaign; Section 1 was used. RISA bars media reports from being used in FISA warrant applications and it makes knowingly making false applications to a FISA court a criminal offense punishable by up to ten years in prison. And RISA makes 702 queries for personal use (like spying on one’s spouse) punishable by up to eight years in prison.
In 1999, the then Director of the National Security Agency, Michael Hayden, told Congress that if Osama bin Laden was in Canada, the NSA would be required to stop monitoring his phone if he crossed the border into the U.S. That blanket statement was at least in part untrue.
The 1978 Foreign Intelligence Surveillance Act has never prohibited the collection of foreign communications by non-Americans. In theory, the NSA would not have been required to stop incidentally “spying” on bin Laden’s phone if he called his terror network abroad from within the U.S. Yet it became Hayden’s policy – even though no U.S. law required it – that when, while in America, a ‘U.S. person’ (anyone here) communicated with a foreign adversary, the NSA did not share that intelligence with others in the U.S. intelligence community, i.e. the CIA or FBI, unless they received a federal court order to do so.
That policy got 3,000 men, women, and children killed on 9/11.
During April and May of 2000, the NSA observed that nine phone calls were made from San Diego to a known al Qaeda telecommunications relay, a satellite phone in Yemen. Those nine calls were made by two known members of al Qaeda, future 9/11 hijackers Khallid al-Mihdhar and Nawaf al-Hazmi. The phone in San Diego was listed in Hazmi’s real name. The phone in Yemen was owned and operated there by Ahmad Mohammad Ali al-Hada, a known associate of bin Laden. The NSA had been collecting communications to and from it since 1996. In 1998, one of the bombers of our embassies in Africa admitted to FBI agents he called that satellite phone to receive instructions and pass messages to bin Laden.
In Looming Tower, author Lawrence Wright wrote, “The NSA, not wanting to bother with applying to the FISA court for permission to distribute essential intelligence, simply restricted its distribution. … Had the line been drawn from the Hada household in Yemen to Hazmi and Mihdhar’s San Diego apartment, al-Qaeda’s presence in America would have been glaringly obvious.”
That is why in 2003 Congress enacted the USA Freedom Act and, in 2008, amended it by creating Section 702 of FISA.
It makes it possible – not easy – for the FBI to find probable cause and formally investigate the few among those tens of thousands of U.S. persons plotting to murder Americans. And Section 702 has always required that once an intelligence or criminal investigation is opened, a warrant is required to further search foreign intelligence for evidence.
Defend America by reauthorizing warrantless Section 702 queries.