What Congress must do to prevent another 9/11

In the aftermath of the worst terrorist attack in New York City since 9/11, now is not the time for Congress to limit the ability of law enforcement and intelligence officials to work together, with requisite speed and flexibility, to identify threats to American citizens, whether at home or abroad.  Unfortunately, proposals actively moving through Congress right now create just such a risk.  Within the next two months, Congress must reauthorize the FISA Amendments Act, a landmark law set to expire at the end of the year, that authorizes surveillance to protect our nation from terrorists, spies, and other foreign threats.  This law has proven to be a uniquely important source of critical intelligence.  Yet bills currently pending in the House, and certain provisions of Senate legislation voted out of committee just last week, highlight the very real risk that Congress might impose unwarranted restrictions on existing laws.  Doing so would repeat the mistakes of the pre-9/11 era and constitutes a major error, particularly in light of recent events.

No one disputes the value of the foreign intelligence collected under the FAA.  There are publicly available examples of disrupted terrorism plots, overseas counterterrorism operations, and legal enforcement successes where FAA-gathered intelligence was crucial.  In our experience, no other single collection authority provides as much critically valuable intelligence as the FAA.

Yet some are wrongly exploiting the general skepticism and distrust of surveillance programs in today’s political environment in an effort to undermine the FAA.  They have suggested that our government may be using the FAA’s authority to spy on Americans, even though the law itself explicitly prohibits the targeting of Americans for surveillance without a court order.  And they have sown fears that this authority might be used illegally by government officials, despite nearly a decade of evidence and public oversight demonstrating the care with which these authorities are used, the strength of the compliance regimes, and the lack of real evidence to buttress this conclusion.

{mosads}To be sure, the potential the government might abuse its surveillance powers is a legitimate concern for all of us.  After all, our nation was founded by men and women who had a healthy skepticism of government and who rebelled against an executive that abused his power.  In fact, in the 1970s, Congress passed the Foreign Intelligence Surveillance Act to provide Congress and the courts with specific authority to oversee the collection of foreign intelligence by the government.  And in 2008, bipartisan majorities in both houses voted to update FISA to address modern communications technologies and new threats by passing the FAA, which itself was reauthorized in 2012, again on bipartisan votes in both houses.  These amendments to FISA were made to provide additional protections for Americans around the world and to ensure that Congress and the courts could continue to play a central role in overseeing executive branch surveillance. 

In light of the extremely high value of FAA-collected intelligence to our national security and to the protection of Americans at home and abroad from the threat of terrorist attacks, Congress should reject any change to the law that would actually restrict information sharing and thus undermine our security.  After all, this intelligence collection authority has been so valuable precisely because it represents a carefully crafted balance between the needs of the government to collect intelligence and our commitment to civil liberties and rights of Americans under our laws and Constitution.  

Most importantly, Congress should avoid the mistakes the government made prior to September 11, 2001, when it needlessly erected barriers to sharing terrorism information.  As chronicled in excruciating detail in the 9/11 Commission report, the so-called “FISA Wall” segregated the intelligence and law enforcement sides of the FBI, making it harder to share intelligence and collaborate on investigations.  Indeed, one of the enduring lessons of 9/11 was the imperative to share lawfully collected information and to avoid debilitating bureaucratic hurdles to effective and agile intelligence cooperation.  

Today, we are in danger of forgetting this crucial lesson.  Legislation pending in the House, in particular, proposes setting up new barriers to sharing FAA information with the FBI.  And the Senate Intelligence Committee’s bill, while certainly preferable to the House bill, likewise contains restrictions on the use of lawfully collected information, as well as search requirements that will hamper the government’s ability to function effectively with little benefit to civil liberties.  Such proposals are not required by law nor the Constitution.  Nor are these misbegotten proposals premised on a record of actual abuse.  Indeed, the independent Privacy and Civil Liberties Board found no evidence of illegitimate exploitation of FAA information nor any attempt to intentionally circumvent legal limits.

Yet so-called reform proposals would build new walls to restrict the sharing of lawfully collected intelligence information and limit the government ability to protect our nation.  At a time when terrorist groups use the Internet to inspire extremists in our own country to carry out deadly attacks—as appears to be the case in New York—and while yet other nations use cyber attacks to penetrate our critical infrastructure, it is highly irresponsible to impose unnecessary and unwarranted limitations on the ability of intelligence professionals to “connect the dots,” using all available information lawfully within their reach.

Still, there are valuable reforms that could be put in place today.  For example, Congress should consider changes to enhance transparency about the collection and use of FAA information.  In addition, requiring the executive branch to report to Congress when major changes are made in how these statutory authorities are used would inform the debate and build public trust going forward.

However, curtailing the government’s core authority to collect foreign intelligence from foreigners located abroad — or placing the critical information necessary to connect the dots out of their reach — will fundamentally undermine our security.   As currently crafted, the FAA is critically important to protecting our nation in an increasingly dangerous world and provides effective oversight by the courts and Congress to ensure our executive branch does the right thing.  Congress should act swiftly to reauthorize this crucial law.

Matthew G. Olsen is the former director of the National Counterterrorism Center and previously served as the general counsel of the National Security Agency under President Barack Obama and for over a decade before that as a federal prosecutor in the Justice Department.  Jamil N. Jaffer is a former associate counsel to President George W. Bush and previously served in the front office of the Justice Department’s National Security Division.