A Letter to Congress on the Impression of Part 702


[Ed note: The House of Representatives is considering the renewal of surveillance authorities this week that a number of former government officials say are critical to U.S. national security.  But they don’t come without controversy. Below is a letter sent to Congress this week, supported by 44 former members of government, about just how important it is for Congress not to let the authorities expire.] 

December 11, 2023

The Honorable Mike Johnson, Speaker of the Home of Representatives

The Honorable Steve Scalise, Majority Chief of the Home of Representatives

The Honorable Hakeem Jeffries, Minority Chief of the Home of Representatives

Members of the Home of Representatives

Pricey Mr. Speaker and Members:

As you nicely know, our nation is underneath vital risk at present with wars in Europe and the Center East, a possible battle with China within the Indo-Pacific, and the lethal circulate of fentanyl throughout our southern border.  In these circumstances, we can not hamstring the U.S. Intelligence Group both by failing to resume Part 702 of the Overseas Intelligence Surveillance Act or by limiting it in ways in which would make it troublesome for the federal government to guard Individuals. To be clear, Part 702 saves American lives and helps maintain Individuals protected from worldwide terrorist assaults, international cyberattacks, abroad fentanyl suppliers, and different threats to our nationwide safety. There’s no substitute for it.

It’s on this context that we, a bipartisan group of former nationwide safety officers that served in Republican and Democratic Administrations and on Capitol Hill, write to urgently warn you of the devastating impacts to nationwide safety if Congress passes H.R. 6570, the Defend Liberty and Finish Warrantless Surveillance Act, as reported by the Home Committee on the Judiciary.

We recognize the intense efforts made by each that Committee and the Everlasting Choose Committee on Intelligence to judge Part 702 and think about what privateness and extra protections are wanted. In our view, nonetheless, the laws reported out by the Committee on the Judiciary is critically flawed and would damage our authorities’s means to guard Individuals within the present heightened risk setting. We define a few of our issues under.

Most notably, as written, H.R. 6570 may finish the Part 702 program fully. Part 21(d) of the invoice enumerates the unique provisions of legislation permitting digital surveillance, however – in what presumably is a severe drafting error – it fails to incorporate Part 702. Because of this, the invoice may prohibit digital surveillance by Part 702 utilizing the compelled help of an digital communications service supplier. Ambiguous or erroneously drafted laws should not imperil America’s security.

H.R. 6570 comprises many different unworkable and harmful provisions with no foundation within the Structure, statute, or caselaw. Under are only a few examples:

The invoice grants unprecedented rights to foreigners. The proposed Part 702(f)(1) would prolong to international spies and terrorists the identical protections proposed to be afforded to Individuals simply because they may be (or have as soon as been) in the US. This goes in opposition to elementary ideas of a long time of surveillance legislation rigorously crafted by each Congress and the courts. Underneath the proposed provision, if a spy recruiter for the Folks’s Republic of China was recognized to be inside the US, that individual couldn’t be the topic of a question underneath the proposed invoice until he (unlikely) certified for one of many proposal’s restricted exceptions. Furthermore, by extending this “safety” to international targets speaking with each other, however not with any American in any respect, the invoice would drastically restrict the federal government’s means to warn Individuals that they’re the targets of terrorist threats, malicious cyber exercise, or espionage operations. Giving foreigners “question safety” does nothing to assist Individuals’ privateness however will as a substitute endanger Individuals.

The invoice would prohibit queries which have stored our nation protected. The invoice would bar the federal government from querying the Part 702 database with phrases related to Individuals until it first obtains a court docket warrant. Even when the federal government may set up possible trigger – circumstances not often instantly current within the fast-moving worlds of terrorists, spies, and ransomware gangs the place the federal government typically has merely a tip — it might nonetheless take days to take action. In brief, if the Intelligence Group discovered {that a} terrorist abroad was speaking to somebody inside the US, it couldn’t search its database to find out whether or not there may be an imminent risk to the US. This may endanger American lives. Furthermore, as written, this warrant requirement would apply not simply to the FBI—which is the topic of different particular provisions based mostly on prior controversies—but additionally to all the intelligence group. This provision, if adopted, would enormously hurt the international intelligence mission of the NSA, CIA and NCTC.

The invoice would critically undermine cybersecurity efforts. As written, the warrant “exception” for cybersecurity is dangerously slim and can make it practically unattainable to guard Individuals who’re victims of international cyberattacks daily, not to mention recuperate ransomware funds. Proposed Part 702(f)(2)(B)(i)(IV) purports to permit queries utilizing a “recognized cybersecurity risk signature.” However it isn’t clear what a “recognized cybersecurity risk signature” even means. In any case, it apparently wouldn’t cowl utilizing precise names, IP addresses or electronic mail addresses of targets of malicious cyberattacks. Cybersecurity professionals know that these phrases are exactly what’s wanted to uncover the sort and scope of a international cyberattack. The results of adopting this provision is that the federal government merely gained’t be capable to warn Americans, companies, hospitals, vital infrastructure house owners, faculties, and others of many imminent cyber threats.

As former nationwide safety officers, we consider the Home can not responsibly undertake H.R. 6750. Against this, H.R. 6611, as reported by the Everlasting Choose Committee on Intelligence, represents a considerate different method to Part 702 reforms. Cheap minds would possibly disagree on the small print of the varied reforms that may be wanted, at the same time as included within the HPSCI invoice. However it presents a rigorous method to the challenges and makes an attempt in a accountable technique to stability privateness protections and our nation’s security. Enacting H.R. 6750 will, in contrast, enormously hamstring our authorities’s efforts to guard Individuals.

Sincerely,

Keith Alexander Former Director, Nationwide Safety Company  Chuck Alsup Former Assistant Deputy Director of Nationwide Intelligence  Stewart Baker Former Assistant Secretary for Coverage, Division of Homeland Safety George C. Barnes Former Deputy Director, Nationwide Safety AgencyWilliam Banks Former Chairman, American Bar Affiliation Standing Committee on Legislation and Nationwide Safety Jeremy Bash Former Chief of Employees, Division of Protection  Timothy Bergreen Former Employees Director, Home Everlasting Choose Committee on Intelligence  Andrew Borene Former Group Chief, Nationwide Counterterrorism Heart  Robert J. Butler Former Deputy Assistant Secretary of Protection for House and Cyber Coverage  James Clapper Former Director of Nationwide Intelligence  Gary P. Corn Former Employees Choose Advocate, U.S. Cyber CommandJohn Costello Former Chief of Employees of the Workplace of the Nationwide Cyber Director  George W. Croner Former Principal Litigation Counsel, Nationwide Safety Company  William P. Crowell Former Deputy Director, Nationwide Safety AgencyJ. Michael Daniel Former Cybersecurity Coordinator, Nationwide Safety Council  Courtney Simmons Elwood Former Common Counsel, Central Intelligence Company  Daniel R. Ennis Former Director, Menace Operations Heart, Nationwide Safety AgencyWilliam Evanina Former Director, Nationwide Counterintelligence and Safety Heart  Bishop Garrison Former Senior Advisor to the Secretary of Protection   Michael Geffroy Former Common Counsel, Senate Choose Committee on Intelligence  Glenn S. Gerstell Former Common Counsel, Nationwide Safety Company  Jane Harman Former Rating Member, Home Everlasting Choose Committee on Intelligence  Adam S. Hickey Former Deputy Assistant Legal professional Common  Jamil N. Jaffer Former Affiliate Counsel to President George W. Bush  Richard H. Ledgett, Jr. Former Deputy Director, Nationwide Safety Company  Michael A. LeFever Former Director of Strategic Operational Planning, Nationwide Counterterrorism Heart  Rachel Carlson Lieber Former Deputy Common Counsel, Central Intelligence Company  Robert S. Litt Former Common Counsel, Workplace of the Director of Nationwide Intelligence        Letitia Lengthy Former Director, Nationwide Geospatial-Intelligence Company  Mike McConnell Former Director of Nationwide Intelligence  Michael Morell  Former Deputy Director, Central Intelligence Company  Michael B. Mukasey Former Legal professional Common of the United StatesLeon E. Panetta Former Secretary of Protection  James Petrila Former Affiliate Common Counsel, Central Intelligence Company  Elizabeth Rindskopf-Parker Former Common Counsel, Central Intelligence AgencyHarvey Rishikof Former Authorized Counsel, Federal Bureau of Investigations  Rod J. Rosenstein Former Deputy Legal professional Common  Norman T. Roule Former Nationwide Intelligence Supervisor for Iran, Workplace of the Director of Nationwide Intelligence  Teresa H. Shea Former Director of Alerts Intelligence, Nationwide Safety Company  Bryan Smith Former Price range Director, Home Everlasting Choose Committee on Intelligence  Suzanne E. Spaulding Former Underneath Secretary, Division of Homeland Safety  Megan H. Stifel Former Director of Cyber Coverage, US Division of Justice  Jan E. Tighe Former Director of Naval IntelligenceFrances Townsend Former Counterterrorism and Homeland Safety Advisor to President George W. Bush   Joseph L. Votel Former Commander, United States Central Command  Thomas Warrick Former Division of Homeland Safety Deputy Assistant Secretary for Counterterrorism Coverage  B. Edwin Wilson Former Deputy Assistant Secretary of Protection for Cyber Coverage  James A. Winnefeld, Jr. Former Vice Chairman, Joint Chiefs of Employees  Julie Myers Wooden Former Assistant Secretary of Homeland Safety for Immigration and Customs Enforcement   



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