Foreign Intelligence Surveillance Act (fisa)

FISA is important in seeking reforms and accountability for any abuses of its authorities. When discussing FISA and what changes may need to be made, it is important to note and recognize that there are stark differences among the individual FISA authorities. Section 702 of FISA, for example, allows the IC to target foreign terrorists, spies, cyber hackers, and other bad actors (but only if they are non-U.S. persons) when their communications pass through the United States. While this authority may lapse if Congress does not resolve the issue by the end of 2023, Section 702 should be understood as an essential tool in the fight against terrorism, malicious cyber actors, and Chinese espionage.

These are two major national security priorities for an incoming President, and it is imperative that the need to use properly main- tained and accountable authorities to counter these challenges be recognized. Section 702 is a vital program that often provides the lion’s share of intelligence used in the President’s Daily Brief (PDB).27 An independent review by the Privacy and Civil Liberties Oversight Board (PCLOB) found that it was not abused. Nev- ertheless, Congress should review the PCLOB’s upcoming 2023 report to help it determine whether any reforms or codification of recent administrative changes in FISA processes are needed.

Other authorities in Title I and Title III, often referred to as “traditional” FISA, have elicited valid concerns about the politicization of intelligence collection authority in recent years. When seeking surveillance of Trump campaign adviser Carter Page, for example, the FBI and the Department of Justice concealed vital information from a specialized court and submitted applications that were riddled with errors. An incoming conservative President should consider reforms designed to prevent future partisan abuses of national security authority. A package of strong provisions to protect against such partisanship might include:

Stiffer penalties and mandatory investigations when intelligence leaks are aimed at domestic political targets, Tighter controls on otherwise lawful intercepts that also collect the communications of domestic political figures, An express prohibition on politically motivated use of intelligence authorities, and Reforms to improve the accountability of the Justice Department and the Foreign Intelligence Surveillance Court.  To keep intelligence credentials from being used for partisan purposes, former high-ranking intelligence officials who retain a clearance should remain subject to the Hatch Act after they leave government to deter them from tying their political stands or activism to their continuing privilege of access to classified government information. The IC should be prohibited from monitoring so-called domestic disinformation. Such activity can easily slip into suppression of an opposition party’s speech, is corrosive of First Amendment protections, and raises questions about impartiality when the IC chooses not to act. CHINA-FOCUSED CHANGES, REFORMS, AND RESOURCES The term “whole of government” is all too frequently overused, but in responding to the generational threat posed by the Chinese Communist Party, that is exactly the approach that our national security apparatus should adopt. CIA Director William Burns has formally established a China Mission Center focused on these efforts, but it can be successful only if it is given the necessary personnel, cross-community collaboration, and resources. That is uncertain at this point, and just how seriously the organization is taking the staffing of the center is unclear.

A critical strategic question for an incoming Administration and IC lead- ers will be: How, when, and with whom do we share our classified intelligence? Understanding when to pass things to liaisons and for what purpose will be vital to outmaneuvering China in the intelligence sphere. Questions for a President will include:

What is our overarching conception of the adversarial relationship and competition? How does intelligence-sharing fit into that conception?

Some Members of Congress have said that intelligence relationships such as the Five Eyes28 should be expanded to include other allies in the Asia–Pacific in, for example, a “Nine Eyes” framework. This fails to take into account the fact that any blanket expansion would necessarily involve protecting the sources and methods of a larger and quite possibly more diverse group of member countries that might or might not have congruent interests. That being said, however, a future conservative President should consider what resources and information-sharing relationships could be included in an ad hoc or quasi-formal intelligence expansion (for example, with the Quad) among nations trying to counter the threat from China. Significant technology, language skills, and financial intelligence resources are needed to counter China’s capabilities.29 The IC was caught flat-footed by the recent discovery of China’s successful test of a nuclear-capable hypersonic missile. No longer can America’s information and technological dominance be assumed. China’s gains and intense focus on emerging technologies have taken it in some areas from being a near-peer competitor to probably being ahead of the United States. China’s centralized government allocates endless resources (sometimes inefficiently) to its strategic “Made in China 2025” and military apparatuses, which combine government, military, and private-sector activities on quantum infor- mation sciences and technologies, artificial intelligence (AI), machine learning, biotechnologies, and advanced robotics.

The IC must do more than understand these advancements: It must rally non- government and allied partners and inspire unified action to counter them. In addition, to combat China’s economic espionage, authorities and loopholes in the Foreign Agents Registration Act (FARA)30 will have to be examined and addressed in conjunction with the Attorney General.

Many issues within the broader government can be tied back to a more general congressional understanding of the threat due to the compartmentalization of committee jurisdictions and the responsibilities of executive agencies to brief on the nature of the threat. Broader committee jurisdictions should receive additional intelligence from IC agencies as necessary to inform China’s unique and more com- prehensive threat across layers of the U.S. government bureaucracy and economy. Former DNI John Ratcliffe increased the intelligence budget as it related to China by 20 percent. “When people ask me why I did that,” he explained in an interview, “I say, ‘Because no one would let me increase it by 40%.’ I had an $85 billion combined annual budget for both the national intelligence program and military intelligence program. My perspective was, ‘Whatever we’re spending on countering China, it isn’t enough.’”31 From an intelligence standpoint, the need to understand Chinese motivations, capabilities, and intent will be of paramount importance to a future conservative President. It is therefore also of paramount importance that the “whole of government” be rowing together.

NATIONAL COUNTERINTELLIGENCE AND SECURITY CENTER (NCSC)

The Senate Select Committee on Intelligence (SSCI) has taken a keen inter- est in possibly updating the codified language underpinning much of the nation’s counterintelligence apparatus. “Spy vs. spy” threats continue to exist, but the rise of China and (to an extent) Russia’s machinations move beyond the governmental sphere to technological, economic, supply chain, cyber, academic, state, and local espionage threats at a level our country has never seen. The asymmetric threat includes cyber, nontraditional collection, and issues involving legitimate busi- nesses serving as collection platforms.

Barring statutory changes that could occur before 2025, a future conserva- tive President should further empower and resource the IC by executive order or through suggested changes in the Counterintelligence Enhancement Act (CEA) of 2002.32 NCSC was given some authority for outreach efforts on behalf of the IC for counterintelligence education, insider threats, and broader U.S. government best practices, but there remain significant deltas between Title 50 and non–Title 50 entities’ protections. Primary operational elements should remain at the FBI and CIA, with the Bureau and NCSC collaborating on nongovernmental outreach. While there is no need to create a separate agency, a future President and DNI should amplify NCSC’s authorities and roles with respect to counterintelligence strategy, policy, outreach, and governance, including supporting necessary Joint Duty Assignments (JDA) for FBI and CIA personnel. At the same time, the FBI requires significant additional resources and legal authorities to fulfill its statu- tory role as the lead operational counterintelligence agency in dealing with the ever-growing threats posed by our adversaries. The CEA should be updated to include foreign espionage efforts aimed at universities.

Corporate America, technology companies, research institutions, and academia must be willing, educated partners in this generational fight to protect our national security interests, economic interests, national sovereignty, and intellectual prop- erty as well as the broader rules-based order—all while avoiding the tendency to cave to the left-wing activists and investors who ignore the China threat and increasingly dominate the corporate world. Reinstitution of the National Security Higher Education Advisory Board and the National Security Business Alliance Council should be prioritized with leadership from the NCSC, the FBI, or a com- bination of both entities.

When the CCP steals at least $400 billion–$600 billion in intellectual prop- erty each year, it is time to devote some strategic thinking to exactly how and to what degree counterintelligence efforts can help to protect America’s commercial endeavors. If Chinese strategic technology gains are happening almost entirely in transnational commercial space, for example, and the private sector is also gath- ering and analyzing some critical intelligence, these essential data points should assist in national-level counterintelligence efforts.

The NCSC was created in the aftermath of 9/11 as the Terrorist Threat Integra- tion Center (TTIC), which later became the National Counterterrorism Center (NCTC) pursuant to President George W. Bush’s Executive Order 13354.33 The NCTC was an organization of approximately three dozen detainees from across the U.S. government with a mandate to integrate counterterrorism intelligence and missions, including terrorist screening. Eventually: In November 2014 the Director of National Intelligence (DNI) established NCSC by combining [the Office of the National Counterintelligence Executive] with the Center for Security Evaluation, the Special Security Center and the National Insider Threat Task Force, to effectively integrate and align counterintelligence and security mission areas under a single organizational construct. The Director of NCSC serves in support of the DNI’s role as Security Executive Agent (SecEA) to develop, implement, oversee and integrate personnel security initiatives throughout the U.S. Government.34