We Cannot Err in Protecting Americans in a New Age of Terror

The world is literally on fire, our nation increasingly threatened at home, and Congress, charged with enacting laws to protect the American people, is about to vote this week on reauthorizing and reforming the most important law protecting our nation and its people against terrorists and foreign agents: Section 702 of the Foreign Intelligence Surveillance Act.  

This law allows the U.S. government to collect critical intelligence to protect the nation by targeting foreigners located overseas for intelligence collection. The law expressly prohibits targeting Americans anywhere in the world without a court order, and already has been renewed twice over the past 15 years by bipartisan majorities in Congress. It is critical that, while Congress reforms and updates this law to address legitimate concerns, it doesn’t make changes that would harm the government’s ability to protect ordinary Americans.

In our opinion, our country faces the widest range of threats that we have ever seen in our careers. At this moment, two wars rage in the Middle East and Europe; Iran-backed terrorist groups have attacked American soldiers in Iraq and Syria over 80 times in the past two months and currently hold American civilians hostage in Gaza; Houthi terrorists recently attacked commercial ships in the Red Sea (and potentially an American warship); China is threatening American partners in the Indo-Pacific; fentanyl from China floods through the southern border, killing more than 70,000 Americans last year alone; and just last week, the FBI director told Congress that he has never seen a more dangerous time facing Americans around the globe.

Indeed, the threat to America and our people is so high that when Sen. Lindsey Graham (R-S.C.) asked the FBI director if he sees the type of “blinking red lights” that preceded the 9/11 attacks, the FBI director said he currently sees “blinking lights everywhere.” Indeed, he specifically warned of potential terrorist attacks here at home, noting that there has been a “steady drumbeat of calls for attacks by foreign terrorist organizations since Oct. 7,” leading the FBI to “work[] around the clock to identify and disrupt potential attacks by those inspired by Hamas’s horrific terrorist attacks in Israel.” And we know that other organizations, such as Hezbollah, ISIS and al-Qaeda, have threatened our nation with renewed attacks.

This week, the House will vote on two bills to reauthorize and reform Section 702, which contributes intelligence to nearly 60% of the articles in the President’s Daily Brief. Because the law is set to expire at the end of this month, if Congress doesn’t act, the government will start going deaf and blind — just as threats to Americans are becoming increasingly urgent. 

While Congress may extend the existing law for a few months, the votes this week matter because of one of the two bills they will vote on — the House Intelligence Committee’s bill — while making significant and needed reforms, would keep our core intelligence capabilities alive. But the bill coming out of the House Judiciary Committee would dangerously limit our government’s ability to protect Americans, particularly here at home.

First, the House Judiciary bill contains a wide range of provisions that could undermine the core of American intelligence collection against foreign terrorists and spies located overseas. For example, it would unnecessarily restrict collection against such individuals — who have no rights under the U.S. Constitution — simply because some of that intelligence might be obtained in the United States. These changes alone would be catastrophic and have nothing to do with protecting the privacy of Americans.

Another key difference comes in whether the government can search information it already has.  Consider the following hypothetical: The military commander of the Islamic Revolutionary Guard Corps-Quds Force (IRGC-QF), a deadly military organization located in Iran, has been talking with the lead external operations planner for Hezbollah, an Iran-backed terrorist group in Lebanon. In this scenario, the U.S. government has obtained this conversation through Section 702 and knows that the two are talking about Hezbollah’s response to American support for Israel and mentioned emailing with a specific, named American in Iowa. 

So, hypothetically, the U.S. government now knows that there is an American in the U.S. in contact with a key Iranian military commander and a Hezbollah terror operative, but that’s all we know. Under existing law, if the government wants to obtain all of the American’s emails to find out what he is doing, it must get a warrant from a federal judge based on probable cause. This is as it should be, because as a free society that seeks to protect the privacy and civil liberties of Americans, a judge must specifically approve the government’s targeting of an American’s communications for collection.

The challenge, of course, is that we don’t currently have enough to show probable cause and get a court order. Thankfully, though, because we’ve likely been watching lots of terrorists in Iran and Lebanon, we have lots of information lawfully collected under Section 702 that we can search to see if the American is actually talking with these guys or others and, if so, whether he is a potential threat or a victim. This will help us exonerate the American or convince a federal judge to give us a warrant for his communications. 

And here’s where the two House bills differ: The Judiciary Committee bill would force the government to get a probable cause warrant from a judge before it can access the contents of already lawfully collected information, while the Intelligence Committee bill would require the approval of senior government officials based on the likelihood of obtaining further intelligence. 

While this might not sound like a big difference, the imposition of such an overly aggressive warrant requirement is hugely problematic for a few reasons. First, the government wouldn’t be able to search information it has already lawfully collected by targeting foreigners — not Americans — located outside the United States. Second, even where the government might be able to get probable cause, it would lose days and weeks in going to a court to search its own information. 

Third, none of the “exceptions” to the House Judiciary warrant requirement would apply because there’s no way to know if there is a real emergency before looking at communications the government already has. Fourth, the very delays and barriers to information sharing that the House Judiciary bill would impose would effectively rebuild the “wall” that was in place before the 9/11 attacks, which we dismantled to better protect the nation. Finally,  existing law already requires the government to get a warrant before it targets any American’s communications for collection.

Given all this, the choice between the two bills this week is clear; both offer significant reforms, some of which could be helpful to protecting the privacy and civil liberties of Americans, and some of which would be significantly harmful. Congress must act soon, and when it does, it would be a grievous error to make changes — like those in the House Judiciary bill — that make it significantly harder to protect Americans in this heightened threat environment, while gaining little of substance for the privacy and civil liberties of Americans, and instead giving unwarranted protections to foreigners. 

If Congress errs and picks the wrong path, and our government once again fails to detect the plotting of the next major terrorist attack as a result, the American people will know who to hold responsible.

Gen. (Ret.) Keith B. Alexander is the former director of the National Security Agency and founding commander of United States Cyber Command. He serves, among other things, as a member of the advisory board of the National Security Institute (NSI) at George Mason University’s Scalia Law School. 

Jamil N. Jaffer is the founder and executive director of the National Security Institute at Scalia Law School and previously served in senior national security roles on Capitol Hill and in the George W. Bush administration at the Justice Department’s National Security Division and in the Bush White House.