Left-leaning privacy advocates and GOP stalwarts incensed by the FBI’s handling of the investigation of Donald Trump are arguing the statute can’t be renewed without major changes that limit the surveillance of Americans. The cross-the-isle consensus makes it highly unlikely Section 702 will be reauthorized as it is, so the administration is making the strongest case it can to keep Congress from drastically curtailing its effectiveness.
The hope is that those lawmakers can be convinced that the upside is worth the risk by invoking a drug crisis that has sparked outrage among politicians across the country. Fentanyl and other opioids killed more than 70,000 Americans in 2021 alone, according to the Centers for Disease Control and Prevention.
While the administration is citing a range of national security threats the electronic surveillance could help counter — from terrorism to cyberattacks — it believes the rise in illegal fentanyl shipments represents one of the strongest arguments to persuade lawmakers 702 should be kept on the books, two US senior intelligence officials said.
Multiple intelligence agencies have used the statute against fentanyl traffickers and to take actions across the global network of suppliers, the first official said.
In a Senate hearing in March, CIA Director Bill Burns stressed how useful the authority has been in targeting cartels in Mexico.
“702 has been crucial in illuminating that network for us and, therefore, enabling us, for example, just in the last few months, to work with Mexican partners to take some very successful actions against the Sinaloa Cartel,” Burns said. He added that it had enabled “significant action” against fentanyl production and processing equipment in Mexico and the US
One Democratic lawmaker said administration officials have also made the fentanyl case in recent weeks in classified briefings for senators and House members when explaining why they should vote to extend the use of the surveillance tool.
The senior intelligence officials and the lawmaker were granted anonymity to speak more freely about private national security conversations, some of which are classified. The National Security Council did not respond to a request for comment.
The fentanyl argument could help sell the program on the Hill, say lawmakers who support reauthorizing 702, so long as privacy protections are added.
“When you think about China and Mexico, the ability to use 702 … could be extremely effective,” said Rep. Darin LaHood (R-Ill.), who has called for new civil liberties safeguards in the statute after the government improperly plugged his name into the surveillance database. “It can play an important role going after the cartels and drug traffickers that are, you know, harming our citizens.”
But while the administration’s pitch dovetails with one of the Republicans’ favorite talking points — the border — it’s far from clear whether it will sway surveillance skeptics, who now hold powerful perches within the House GOP conference.
“I’m not convinced. I would have to see evidence of that,” said Rep. Ben Cline (R-Va.), a member of the Judiciary Committee, adding the intelligence community has made the case about using the program to track cartels but not the details about fentanyl shipments.
A group of House Republicans is discussing letting the authority expire, underscoring the heavy lift the administration is facing even as it looks for angles to appeal to GOP skeptics. And there’s growing bipartisan interest in an idea that the intelligence community has resisted: requiring a warrant to search the collected data for information on US citizens.
Section 702 only allows the intelligence community to surveil the emails and other electronic communications of non-US citizens located abroad. However, once that data is collected, it is stored in a repository that becomes fair game for the FBI — which can then sift through the database for information on Americans without a warrant.
The spike in fentanyl overdoses has pushed Democratic and Republican politicians on Capitol Hill and in state houses to call for the federal government to do more to crack down on the networks smuggling the drug. The Biden administration has taken a number of actions to blunt the flow of fentanyl, including establishing an interagency task force to try to disrupt the networks responsible for financing and shipping the illicit drugs into the US and levying sanctions on Mexican cartels complicit in the fentanyl trade .
House and Senate lawmakers have also filed legislation to designate Mexican drug cartels as foreign terrorist organizations, an idea endorsed by every declared Republican presidential candidate and backed by some congressional Democrats.
That would link the fight even more directly to 702, which has long been justified by the need to address foreign terrorist networks.
But as ISIS and al-Qaeda networks in the Middle East have become less of a priority, it has made the government’s argument for maintaining the broad electronic surveillance powers more difficult.
“The intelligence community and the administration now need to demonstrate the value of section 702 and how it’s relevant to today’s foreign intelligence and threat environment,” said Adam Klein, director of the Robert Strauss Center for International Security and Law at the University of Texas at Austin. That includes China. And that includes potentially international cartel activity.”
Assistant Attorney General Matt Olsen made a similar argument this month. Particularly when it’s connected to international terrorism, counternarcotics “often comes into play, or can come into play, in the context of Section 702,” he said at an event on the new national cybersecurity strategy.
702’s backers in Congress are also hoping fentanyl could help convey the value of the program to skeptics or fence-sitters on the Hill, some of whom are unfamiliar with the program due to how rarely the government opens up about it.
“Targeting the cartels with 702 is probably a particularly good example” of where the statute can add immense value to the US intelligence community, said Rep. Jim Himes (D-Conn.), who supports the reauthorization of the program. The government should be “deploying all resources we have available against what is an absolutely lethal threat to American safety.”
Invoking the fentanyl crisis still doesn’t address the privacy concerns around the measure, and the battle over what changes are needed to protect Americans’ data remains at the center of the debate.
Pro-renewal lawmakers and intelligence officials say that makes it even more critical to highlight how Section 702 is used.
The administration is facing an “uphill battle” when it comes to reauthorization, the second intelligence official said.
“But traditionally, we’ve had success when we’ve made the value case, and certainly when we’ve made a tailored value case to members, we’ve seen that it does have an impact,” the official said.
Rep. Mike Turner (R-Ohio), who supports reauthorizing 702 but believes new restrictions must be placed over the FBI’s access to the program, said its backers still need more help from the administration to sell their colleagues on the program.
“The administration has not, and even past administrations have not, tied intelligence successes to the tools that they have the authorizations that they have through Congress,” Turner said. “I think we’re going to need really compelling stories that will illustrate the importance of these tools.”
Alexander Ward and Jordan Carney contributed to this report.
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