Intelligence Community Uses Intelligence Failure to Argue Members of Congress Who Support Reform of Section 702 Would “Degrade” Surveillance of Hamas
The intelligence community is now spinning the media that the barbarous invasion of Israel and mass murder of its citizens by Hamas should prompt Congress to reauthorize Section 702 of the Foreign Intelligence Surveillance Act without any meaningful changes or reforms.
Before listening to the intelligence community’s spin, Congress should first ask why given this powerful Section 702 authority and all the technology in the hands of the NSA, did U.S. intelligence miss the scale and scope of Hamas’ intentions? While U.S. intelligence detected rising activity in Gaza, it did not detect the threat that resulted in the killing of more than 1,400 Israelis and at least 30 Americans.
Instead of explaining this abject intelligence shortfall, some in the intelligence community are defaming champions of Section 702 reform on Capitol Hill as opposing surveillance of Hamas. This weak attempt to deflect from an abject failure makes no sense. It is, at best, an especially callous perversion of Rahm Emanuel’s aphorism that one should “never let a good crisis go to waste.”
Carrie Cordero, a CNN legal and national security analyst, and former counsel at the Office of the Director of National Intelligence, writes: “Hamas, Hezbollah and their state-sponsor, Iran, are wholly appropriate intelligence targets, and Section 702 authority should not be degraded while threats from these actors have escalated to the degree of starting a new war in the Middle East.”
In just a few words, Cordero portrays the many House and Senate Members in both parties who are pushing to add warrants for Americans to the reauthorization of Section 702 as being willing to “degrade” an authority that counters some of the worst regimes in the world. This broadside obfuscates the purpose of Section 702 and how it is being misused by our government to spy on the American people.
Congress designed Section 702 to create a legal authority for U.S. intelligence agencies to spy on foreigners located abroad for national security purposes. It is, as Cordero notes, a tool especially designed for counterterrorism. No reform on the table would restrict U.S. intelligence from using Section 702 to surveil Hamas, Hezbollah, Iran, Russia, China, North Korea, or the devil himself.
So how, then, could reforms to Section 702 “degrade” this important and useful authority? There can be only one meaning to this phrase. Somehow, protecting the rights of American citizens against intrusive and unconstitutional spying would “degrade” Section 702.
Civil liberties groups and their champions on the Hill are concerned that this authority, meant to surveil foreign threats on foreign soil for national security, has been used by the FBI to spy on a Member of the U.S. House, a Member of the U.S. Senate, 19,000 donors to a congressional campaign, community leaders, and protest groups both left and right. The FBI also uses Section 702 to warrantlessly access the communications of Americans to obtain a backdoor route to prosecuting them for ordinary crimes, such as bribery and healthcare fraud – far beyond the intention of Congress in passing Section 702.
In the hands of the FBI, Section 702 has turned the Fourth Amendment requirement for a probable cause warrant for American citizens into vaporware.
Fixing this would do nothing to degrade the ability of the CIA to follow Hamas and Hezbollah, or to restrain the FBI from obtaining a warrant to surveil an American who is in communication with dangerous actors.
That they now want to use their failure as an excuse to violate the civil liberties of law-abiding U.S. citizens – by the hundreds of thousands each year – speaks to shameless opportunism, masking incompetence and authoritarian tendencies.