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Don't hobble America's anti-terrorism capabilities

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I have studied the Section 702 program and believe that this program is protecting American lives without jeopardizing the constitutionally-guaranteed rights of our citizens. (Tim Fadek/Bloomberg)

Since the Sept. 11, 2001 attacks, there have been more than 100 terror plots on American soil. Just last month, a would-be suicide bomber detonated a pipe bomb in a New York City subway station, an attempted attack inspired by ISIS. As threats to our nation continue to rise, our government has an obligation to use every available tool to protect the American people.

Later this week, the House of Representatives will vote on whether to reauthorize an important counterterrorism program set to expire later this month. Without congressional action, our intelligence community will not be able to use this irreplaceable tool that protects our nation and prevents future terrorist attacks.

Due to changes in communications technology in the 30 years after FISA was enacted in 1978, Congress recognized that the intelligence community was having to obtain probable cause orders to conduct electronic surveillance even on foreign terrorists outside the United States (i.e. individuals not afforded Fourth Amendment protections). To rectify this problem, Congress enacted the FISA Amendments Act in 2008, which added Section 702 to FISA. The program authorizes the collection of foreign intelligence information of non-U.S. people located overseas.

This program has been incredibly successful in the United States’ counterterrorism efforts worldwide. For example, it was the primary means by which the former number two commander of ISIS, Hajji Iman, was tracked and removed from the battlefield. The U.S. government spent two years trying to locate him, and even offered a $7 million reward for information on his whereabouts. Data collected under Section 702, which targeted Iman’s associates, was a critical development because it allowed for our surveillance on the ground to track Iman and ultimately remove him from the battlefield.

According to the Privacy and Civil Liberties Oversight Board (PCLOB), this program has played an imperative role in discovering and disrupting terrorist plots, as well as identifying formerly unknown participants in international terrorism, all while operating within constitutional boundaries.

Despite what some critics will have the American public believe to be true, Section 702 is a targeted authority that monitors communication of foreign individuals originating from foreign countries. For example, in its 2016 annual transparency report, the Director of National Intelligence stated there were approximately 106,000 Section 702 targets, out of a global population of 7.5 billion. The law does not allow for bulk collection, and strictly prohibits the use of this authority to knowingly collect information on U.S. persons.

In order to ensure the protection of U.S. citizens’ right to privacy for the times that U.S. persons' information may be incidentally collected by targeting one of these foreign bad actors, Section 702 is subject to extraordinary checks and balances, including oversight from all three branches of government. It is also worth noting that the Foreign Intelligence Surveillance Court and other U.S. federal district courts have found Section 702 to be constitutional.

The legislation Congress will consider this week includes new privacy enhancements to further protect Americans’ privacy rights. These provisions include: a new requirement for the FBI to have probable cause before it reviews any 702 data during a criminal investigation not related to national security, as well as a new requirement restricting use of Section 702 information in criminal cases against U.S. people to just those crimes related to national security or severe crimes such as murder or kidnapping.

As a conservative, I am committed to both protecting our national security and our civil liberties. As a matter of national security, we cannot return to a pre-9/11 footing by reinstituting barriers between national security and law enforcement. Given the concerns of many of my colleagues and constituents, I have studied the Section 702 program and believe that this program is protecting American lives without jeopardizing the constitutionally-guaranteed rights of our citizens.

The data collected under this program simply cannot be obtained any other way, making it an invaluable and irreplaceable national security tool. Rather than revert to a pre-9/11 security position, Congress should reauthorize this vital program by quickly and overwhelmingly supporting S. 139, the FISA Amendments Act of 2017.

Jim Banks, a Republican member of the House Armed Services Committee, represents Indiana's third congressional district.

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