Fentanyl kills thousands of Americans. Could plugging a gap in U.S. intelligence save lives?
WASHINGTON – The CIA and broader U.S. intelligence community want to do more to fight the fentanyl crisis killing tens of thousands of Americans a year, and they are quietly pushing Congress to let them expand their use of a controversial and top-secret eavesdropping program to do it, USA TODAY has learned.
Senior intelligence officials have spent the past year trekking to Capitol Hill to push for reauthorization of Section 702 of the Foreign Intelligence Surveillance Act of 1978, which allows them to conduct warrantless eavesdropping on foreigners overseas.
As the nation's primary spy outfit, the Central Intelligence Agency in particular says the intelligence collection allowed under Section 702 is urgently needed to thwart transnational organized crime groups manufacturing and smuggling the lethally potent synthetic opioid from China to Mexico and into the U.S.
But the law is too narrowly focused in its current form to allow CIA case officers and analysts to go after all of those involved in the multibillion-dollar fentanyl trade overseas, senior intelligence officials told USA TODAY.
To expand 702, though, intelligence officials have to overcome the significant concerns of a bipartisan group of lawmakers who believe the powerful surveillance tool has been misused in the past, including to inappropriately spy on Americans. And the clock is ticking, with the law sunsetting on April 19 if its many critics in Congress don't come to a consensus on how to reform and reauthorize it.
A spy program from the 'gloves off' post-9/11 era
The Section 702 program was established in the frenzied aftermath of the Sept. 11, 2001, attacks to allow the U.S. to vacuum up the communications of non-Americans overseas that go through U.S. telephone and email service providers without having to get the court-approved warrants required for most electronic surveillance.
Over two decades, the program's target list has expanded beyond suspected international terrorists to include two other officially-certified groups – foreign governments and traffickers in weapons of mass destruction, the officials said.
And as America’s fentanyl overdose crisis has intensified, CIA spies and analysts have used it to thwart traffickers of the heroin-like drug and the precursor chemicals used to make it in labs, according to a CIA briefing paper obtained by USA TODAY. Federal health officials say fentanyl can be more than 50 times more powerful than heroin, and even a dose the size of a grain of rice can be fatal.
“In mapping the networks that come from overseas, the supply and production and then distribution across the border, we obviously rely on a whole host of collection” tools and technologies, Deputy CIA Director David Cohen said in an exclusive interview about CIA counternarcotics efforts at the agency’s Langley, Va., headquarters.
That includes “traditional HUMINT,” Cohen said, using spy talk for intelligence gleaned from human intelligence, or CIA-recruited agents on the ground in foreign countries. But in today's increasingly high-tech and interconnected world, using the 702 program to intercept and crunch intelligence gained from emails, phone calls and other electronic communications, he said, has become “absolutely essential in that work” as well.
By accessing communications in near-real time, the CIA can identify and track key players involved at all levels of the fentanyl trade even as they try to hide behind sophisticated layers of protection, Cohen and two other senior U.S. intelligence officials told USA TODAY.
More broadly, Cohen said, the CIA’s 702 program has proven invaluable at every level of the intelligence cycle, from recruiting and vetting foreign informants to protecting CIA personnel in hot zones overseas to gathering intelligence on drug trafficking networks and the corrupt foreign officials that often protect them.
Pressing Congress for a ‘fourth certification’
Currently, the CIA can only use Section 702 against drug traffickers if it can connect them to one of the three “certified” threat groups. Obtaining a so-called “fourth certification” would allow U.S. spies to more freely go after those involved in the fentanyl trade without having to make such connections, the two senior U.S. intelligence officials said.
But that would require congressional approval. And it's not at all certain that lawmakers will vote to reauthorize Section 702 even in its unexpanded form in the next two weeks.
The CIA’s push for the expanded use of 702 is happening largely behind the scenes, in part to protect the extraordinarily secretive sources and methods used in related intelligence collection efforts against drug traffickers, the two senior officials said. They are also wary, they say, of the effort being misinterpreted as an expansion of 702 powers ? as opposed to an expansion of the list of targets ? at a time when reauthorization already is facing significant opposition in Congress and among civil liberties groups.
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The two officials said the new certification would give intelligence agencies specific authorization to go after those not only manufacturing fentanyl and its many precursor chemicals but those transporting and protecting them as the lucrative cargo makes its way to the United States.
The intelligence officials, who focus on counternarcotics and interdiction efforts and analysis, spoke to USA TODAY on the condition of anonymity to discuss highly sensitive matters.
Precursor chemicals from China and pill presses for powdered fentanyl
In one case in recent years, CIA operatives helped stop a massive shipment of chemicals needed to make the synthetic opioid. In another, the intelligence officials said, the CIA helped intercept a shipment of pill presses needed to mix powdered fentanyl into professional-looking tablets that are then sold to unsuspecting Americans as legitimate pharmaceutical products.
More and more of those products are being made and smuggled into the U.S. by Mexican drug cartels, often in the form of painkillers like Percocet and oxycodone and party drugs popular with young people. In 2023, for the first time in U.S. history, fatal drug overdoses ? most of them from black-market fentanyl ? peaked above 112,000 deaths.
A push to persuade a reluctant Congress
To win over lawmakers, the CIA, the FBI, National Security Agency and other intelligence agencies have mounted an unprecedented public relations and education offensive. That included declassifying the specifics about what three threat groups can be targeted under Section 702 ? and even the fact that the certifications exist and don't include counternarcotics ? so they could answer questions from Congress members without top security clearances, the officials said.
CIA Director William Burns, FBI Director Christopher Wray and Director of National Intelligence Avril Haines have testified before Congress about the value of 702, and FISA writ large. Acknowledging past controversies, they said they have instituted reforms aimed at better protecting Americans from being caught up in what is known as incidental collection, or information gathered lawfully under 702 while listening in on foreigners overseas.
More: Blue Lotus, Four Horsemen, Hydra and Pelican Bones: How the US fights the fentanyl crisis
Still, many House and Senate members – Democrats and Republicans alike – say the eavesdropping program needs more oversight by the Foreign Intelligence Surveillance Court and other watchdogs before they can support its reauthorization.
Some say the FBI in particular has misused the program in its zeal to go after suspected threats. As a result, some of the current legislative proposals to reauthorize 702 include requirements that authorities to get FISA court-approved warrants in some cases before using it.
At a hearing last December, critics led by Sen. Mike Lee, R-Utah, attacked the program for a range of abuses, including FBI agents using it investigate contributors to political campaigns. Lee refused to accept Wray’s assurances the program has been reformed.
“We have no reason to trust you because you haven’t behaved in a way that is trustworthy,” Lee told him.
To make its case, the CIA also has circulated unclassified “Top Headlines” that describe some of its successes using 702, including in the fight against fentanyl. Others include going after al-Qaeda operatives and other terrorists, North Korean nuclear traffickers and cyber attackers and so-called “malign influence” campaigns by foreign nation states like Russia, China and Iran.
By the April 19 deadline, Congress must decide among four bills to reauthorize Section 702 or allow it to expire, according to Noah Chauvin and Elizabeth Goitein of the Brennan Center for Justice at NYU Law School.
“This controversial law was originally intended to make it easier for the government to monitor foreign terrorists, but the government has repeatedly abused it to illegally spy on Americans, violating individual rights on a wide scale,” Chauvin and Goitein said in a Feb. 2 primer on the surveillance statute.
They said only two of the bills "would help prevent future abuses" — the Protect Liberty and End Warrantless Surveillance Act (Protect Liberty Act) and the Government Surveillance Reform Act of 2023.
Some lawmakers, like outgoing Rep. Ken Buck, R-Colo., think some of the existing reauthorization bills don’t go far enough and threaten to tank congressional approval of the entire program.
“Losing Section 702 would be a calamity for American security and a disaster for those who care about sensible and needed reforms to this process,” Buck said in a Jan. 27 opinion piece in the conservative Washington Times.
Buck singled out one of the most prominent proposals, the Protect Liberty Act passed by the House Judiciary Committee in late 2023, as “a bad bill” because it seeks too-stringent protections against incidental collection.
“While it sounds innocuous enough,” Buck wrote, “the unintended consequences of this legislation would hamper U.S. surveillance capabilities and undermine our ability to thwart potential terrorist attacks.”
At the other end of the spectrum are lawmakers like Sen. Ron Wyden, D-Ore., one of Congress’s staunchest critics of CIA warrantless surveillance programs.
More: Meddling in elections, drugs and terrorism? Here's the U.S. intel new list of threats
Wyden told USA TODAY he is wary of any use of Section 702, especially an expansion, given its past civil liberties abuses. “Section 702 has been repeatedly abused by government agencies in recent years,” Wyden said, which is why a bill he has co-sponsored includes what he calls “commonsense reforms” to protect Americans’ rights.
But Wyden said he supports the idea of using 702 to go after fentanyl traffickers if the appropriate guardrails are in place. “Any expansion of government surveillance authority,” he said, “would make the reforms we are proposing even more important.”
To that end, the bipartisan bill he has co-sponsored would require the government to seek court approval in order to use section 702 to surveil the overseas activity of drug cartels, he said, “and ensure that the public is aware of any expansions of government authority."
Seeking a middle ground for 'a major crisis with respect to fentanyl'
As Congress deliberates, senior CIA officials continue to travel from their Virginia base to Capitol Hill to respond to lawmakers' requests for more details about how they would use Section 702, including in the counter-fentanyl effort.
“We are leaning far forward, declassifying information that we’ve never done before,” in order to help gain reauthorization of 702, said a third intelligence official. “It is extraordinarily unusual for us to do this, but we believe it is that important.”
Rep. Jim Himes of Connecticut, the ranking Democrat on the House intelligence committee, described it as an intensive “year-long effort on the part of every element of the (intelligence community) and Department of Justice.”
“They've just been tromping up to the Hill time and time and time again to explain the program, because it is fairly complicated program,” Himes said in an interview. “And you still have a lot of members running around who believe that this is a tool to spy on Americans, which it most assuredly is not.”
Given his leadership role on intelligence oversight matters, Himes has spent a lot of time listening to the concerns of his fellow lawmakers – and those of the intelligence community. He told USA TODAY that the threat from fentanyl is so important that Congress must find a compromise that protects Americans' civil liberties while also giving intelligence agencies the fourth certification they seek to better target drug traffickers.
“You may impact U.S. persons more than you would on counterproliferation, for example, or counterterrorism because I think rare is the person in Mexico who doesn't have relatives in the United States,” Himes said. “So, there are some heightened concerns and sensitivities that I think are very legitimate that members are talking about.”
Himes said he will continue to lobby his colleagues on the issue in the hope that 702 reauthorization includes the fourth certification. “I think the speaker just needs to figure out a way to bring it to the floor,” he said, for debate and a vote.
“But, look, how many Americans are dying as a result of nuclear proliferation this year?” he asked. “Zero, whereas we've got a major crisis with respect to fentanyl."
This article originally appeared on USA TODAY: CIA wants to ramp up fentanyl fight and is asking Congress for help
