WASHINGTON – American spies and intelligence agencies are quietly on the frontlines of a global battle against fentanyl, a drug ravaging communities across the United States. Now a tool the CIA says is critical to that fight is at risk in Congress this fall.
A 9/11-era surveillance program is enabling the intelligence community to monitor the production line of fentanyl overseas – from the smuggling of chemicals across the Pacific to its assembly in clandestine facilities throughout Mexico. Known as Section 702 of the Foreign Intelligence Surveillance Act, the program allows law enforcement and intelligence agencies to surveil foreigners who are located abroad and communicating on U.S. internet and phone service providers, without obtaining a warrant.
Intelligence officials tell McClatchy it has become a crucial asset in their fight against a synthetic opioid killing more Americans each year than all other drugs combined.
But the program appears imperiled for the first time since its creation 15 years ago by a new set of critics and amid political fallout over the investigation of Donald Trump’s 2016 presidential campaign.
Section 702 is the reason intelligence officials know that the overwhelming majority of chemicals used in fentanyl trace back to China, officials said. And it has provided intelligence linking at least one foreign government official to the trade.
Intelligence collected using Section 702 has proven critical in disrupting specific transfer attempts of vast quantities of fentanyl pills across the U.S. southern border, a U.S. intelligence official told McClatchy, speaking under the condition of anonymity to discuss sensitive intelligence operations, and has allowed the U.S. government to warn commercial shipping giants that smugglers are using their freight to conceal chemical loads.
“702 is really the only source of information that allows us to stay dynamic in thwarting the threat,” the intelligence official said. “If we were to lose it, it would make us blind.”
The program has also been instrumental in the recruitment of foreigners abroad to spy for the United States to penetrate smuggling organizations, monitor their tactics and disrupt the supply chain of fentanyl before it reaches the homeland as a finished product, multiple intelligence officials said.
It has helped the CIA learn the habits of potential spies before they are even approached for recruitment. And intelligence officials said it has also helped protect agents from being placed in danger in the field, when remote surveillance of a target is a viable alternative.
The intelligence official described a scenario in which a drug cartel is preparing to smuggle thousands of fentanyl pills to the United States in a single run. Its chemical suppliers in Asia, its pill press manufacturer, its choice of commercial shipper and its ultimate choice of smuggler would all be talking – communications that can be monitored in real-time using the FISA program.
“Section 702 has allowed us to illuminate networks in the global supply chain – from precursor to shipment, from soup to nuts,” the intelligence official said. “It gives us insight into some of the quantities and potency of some of the drugs produced. It’s given us insight into specific smuggling techniques that the networks use to avoid detection.”
“They’re communicating not unlike other businessmen,” the official added. “They have profits, they have margins, they have middlemen, they have lawyers.”
Democrats have long questioned whether Section 702 infringes on the constitutional rights of U.S. citizens. The program allows intelligence officials to collect data on targeted individuals with precision and speed by compelling a U.S. telecommunications provider, such as Google or Verizon, to provide the contents of specific email accounts or phone lines of foreigners abroad without the need for a warrant.
As a consequence, it also allows for incidental collection of communications between U.S. citizens and those foreign targets – a backdoor, critics argue, for the warrantless surveillance of Americans. Civil liberties advocates also question whether, even with creative interpretations, the law permits intelligence officers to collect information for counternarcotics operations.
Republicans, too, are now raising questions over the program, accusing the FBI of abusing FISA powers in its investigation of Trump’s 2016 campaign. An internal review of the FBI investigation found that its application for a FISA warrant on one of Trump’s top campaign advisers at the time was based on false information.
“It’s evident that the FBI has been weaponized, and it’s far past time for reforms after the FBI has repeatedly used their power to go after political opponents,” Sen. Eric Schmitt, a Missouri Republican, told McClatchy when asked for his position on Section 702 reauthorization. “I’ll be watching this closely as it moves forward.”
The bipartisan skepticism puts Section 702 in jeopardy for the first time since its initial passage in 2008, when the program was first designed to track down terrorist plots.
Biden administration officials are growing anxious over the fate of the program, which is set to expire at the end of the year.
“We are hearing calls for reform from both sides, without agreement on what the reform should be,” a senior administration official said. “And until we get the votes we need to confirm they are a yes on reauthorization, we will be concerned.”
A DIFFERENT BATTLE
The debate has shed light on the intelligence community’s use of the program to fight a pervasive drug crisis.
“We’re dealing with a very deadly threat in fentanyl,” Under Secretary of Homeland Security for Intelligence and Analysis Kenneth Wainstein told McClatchy. “It’s horribly lethal. Its trafficking sale is incredibly lucrative. The Mexican drug-dealing cartels are heavily involved in it, with deadly efficiency, and they don’t care about the human results of that trade.”
“When you put those things together, that makes for a very dangerous threat to our nation, to our people, to our national security,” Wainstein said. “It’s a threat that has come to the fore that we didn’t have to deal with in the past.”
For decades, intelligence agencies have been able to monitor acres of foreign coca farms and opium poppy fields from the air before crops were turned into cocaine and heroin. Intelligence officers could trace the entire supply chain with basic surveillance tools that help them disrupt major drug trafficking operations.
Fentanyl poses a new kind of threat, U.S. officials say, because of the source of its basic ingredients and the simplicity of its production.
Since 2018, fentanyl has driven a record surge in drug overdose deaths across the country. Over 70,000 Americans died from synthetic opioids – primarily fentanyl – in 2021, the last year with verified data from the National Institutes of Health, accounting for 66% of all overdose deaths that year. Provisional data from the National Center for Health Statistics suggests that overdose deaths plateaued in 2022.
The Mexican government has been a cooperative partner, U.S. officials said. But Chinese entities smuggling precursor chemicals are constantly adapting their tactics. Todd Robinson, assistant secretary of state for international narcotics and law enforcement, said in July that Beijing “needs to do more as a global partner” to disrupt the fentanyl trade, given its position as a primary source of critical materials.
“Instead of selling the finished product, you now have an incredible array of Chinese companies selling precursor chemicals which are then shipped, in various ways, overwhelmingly to Mexico, which cartels then mix in relatively simple ways,” Deputy Homeland Security Advisor Josh Geltzer told McClatchy.
Producers take advantage of the bustle of commercial shipping traffic to transport the chemicals from China to Mexico, and from there can simply produce the drug in the secretive settings of store basements and apartment units.
“One pill really can kill,” Geltzer added, “so I think it raises the stakes in our effort to reduce the supply, and in understanding the supply chain at the earliest stages.”
PROGRAM IN JEOPARDY
For a decade, the political debate over Section 702 largely stemmed from privacy advocates alarmed by the broad powers afforded to U.S. intelligence agencies under the surveillance law.
The Obama administration secretly secured approval from a FISA court in 2011 to use the program to search Americans’ communications with foreign individuals without warrants, including intercepted phone calls and emails, in cases related to national security investigations. It was one of many revelations on the program unveiled by Edward Snowden, a former National Security Agency contractor, in 2013, before he fled to Russia.
Section 702 was reauthorized in 2018. But the program was back under scrutiny within months of that vote, after the inspector general of the FBI published a scathing report outlining systemic abuse at the agency of its surveillance authorities.
The FBI had used false statements in its application for a warrant to surveil Carter Page, a foreign policy advisor to Trump in his 2016 presidential campaign who was suspected of coordinating with Russia. Nearly one in five FISA queries at the agency failed to comply with legal standards.
In May, a FISA court unsealed its memorandum finding the FBI had misused Section 702 over 278,000 times, including searches of individuals involved in protests around the killing of George Floyd in 2020, suspects in the Jan. 6, 2021, riot at the U.S. Capitol, and donors to an unnamed candidate for Congress.
The inspector general’s report, a subsequent audit, and the unsealed court documents seemed to confirm the worst fears of progressives long opposed to the expansive use of FISA authorities – and added new critics on the right allied with Trump, who has railed against the surveillance law ever since.
The most recent audit published in May found the FBI has since come into regular compliance with the law. But that hasn’t stopped lawmakers from threatening to oppose its renewal amid broader criticism of the surveillance law.
In June, a hearing held by the Senate Judiciary Committee laid bare bipartisan skepticism of the program and the risk that Congress could fail to reauthorize it.
Sen. Thom Tillis, a North Carolina Republican, urged his colleagues to support reauthorization, invoking his party’s promise to combat the fentanyl trade. But he acknowledged a difficult path lay ahead trying to find consensus.
“Law enforcement personnel need to be armed with tools they need to detect and respond to increasingly sophisticated threats from our nation’s adversaries,” Tillis later told McClatchy. “There have also been disturbing documented abuses of FISA that cannot be repeated.”
‘COST OF FAILURE IS REAL’
Ahead of a deadline to renew the law by the end of the year, McClatchy asked lawmakers across the country whether Congress’ failure to reauthorize the program would impact the trajectory of the fentanyl epidemic.
A majority of those asked across both parties said they support reauthorization with significant reform – but with time running out, few articulated the reforms required to earn their support.
The President’s Intelligence Advisory Board, which advises presidents on the quality and legality of foreign intelligence activities, issued a report in July warning that reauthorization “may be in jeopardy” due to failures at the FBI and the political fallout.
“Complacency, a lack of proper procedures, and the sheer volume of Section 702 activity led to FBI’s inappropriate use of Section 702 authorities, specifically U.S. person queries,” the report said.
But the board “found no evidence of willful misuse of these authorities by FBI for political purposes,” it continued, noting the Justice Department had only identified three incidents of intentional misconduct from among millions of FBI queries using Section 702 information.
“The cost of failure is real,” the board report asserted, warning of broad consequences for national security if the program is not renewed. “If Congress fails to reauthorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time.”
The board recommended several reforms to secure congressional passage that the administration has largely endorsed, proposing the FBI hire a designated compliance officer and also the establishment of an independent review office that directly reports to the president. And it recommended compelling the Justice Department to remove the FBI’s authority to search Americans’ names using Section 702 data for evidence in crimes unrelated to national security threats.
It also suggested that Congress should direct the government to “submit a new counternarcotics certification under Section 702” to the surveillance court, with much of their reasoning redacted.
A U.S. official said that, “under the current authorities, there are circumstances in which (intelligence) collection on foreign narcotics traffickers is authorized.” Congress has been briefed on the use of Section 702 to track drug cartels, whose communications with Chinese suppliers have then been collected secondhand. But a new certification could broaden the power of intelligence agencies to monitor secondary players in the fentanyl trade.
“The reform debate is about this program’s broad intrusion on Americans’ privacy,” said Patrick Toomey, deputy director of the ACLU’s National Security Project. “If the purpose of Section 702 is to target foreigners for intelligence purposes, as officials often say, then they should stop stonewalling robust protections for Americans.”
Toomey questioned whether existing legal certifications for use of Section 702 allowed for intelligence collection unrelated to threats from foreign government entities, terrorist organizations, or weapons of mass destruction. Not all certifications for FISA use are public – yet another criticism among advocates of transparency.
“There is no evidence that a warrant requirement for Americans would harm national security,” Toomey said.
While Section 702 first passed in the aftermath of the attacks on 9/11, use of the program has expanded significantly over time. Section 702 first passed into law in 2008 – months after Apple brought the iPhone to market, leading a global expansion of U.S. telecommunications that has proven serendipitous and invaluable to the American intelligence community.
Other surveillance powers allow intelligence agencies to collect communications data overseas. But then the burden falls on intelligence officials to obtain that material on a foreign communications servers, often in hostile territory, and to comb through tranches of data, a time-consuming task. Intelligence officials say those tactics also risk intercepting the communications of Americans – and do not allow the sort of precise, speedy searches that have made Section 702 so powerful.
Today, the reliance of transnational criminal organizations, hostile government actors, terrorist groups and drug cartels on U.S. communications platforms provides a strategic advantage to the United States that would be foolish to waste, the U.S. intelligence official said. The official noted that 60% of the material in the president’s daily brief – intelligence information compiled for the president every day – relies on information collected using Section 702.
“No one is satisfied with where we are on the fentanyl issue,” said Geltzer, the president’s deputy homeland security advisor, noting thousands of Americans are still dying from the drug each month.
But critics of the government’s response to the epidemic, and of the surveillance program, risk aggravating both, he said.
“I would say to them, don’t blind us to the insights that have at least gotten us this far,” Geltzer added. “At a minimum, don’t blind us to that which already has helped us make some progress against this threat.”
