At a time of polarized political discussion in the United States there is broad consensus on at least one topic: the seriousness of foreign threats confronting the country. According to the Intelligence Community’s (IC’s) Annual Threat Assessment released in February 2024, threats range from nation state actors such as China, Russian, North Korea, and Iran, to regional conflicts such as those roiling the Middle East, to non-state actors such as transnational criminal organizations, human traffickers, and foreign terrorists. Citing threats emanating from across the globe, Speaker Mike Johnson called for “fortitude and fight” in confronting “Chinese communists, Russian oligarchs, and Islamic terrorists.”
Policymakers need accurate, timely, and objective intelligence now more than ever. With the start of a new administration and a new Congress, it is time to take stock of how well the IC is positioned to deliver on its national security mission. As noted by Dustin Carmack, former Chief of Staff for then-Director of National Intelligence John Ratcliffe, in his chapter on the Intelligence Community for the Project 2025 report, “An incoming conservative President needs to use these intelligence authorities aggressively to anticipate and thwart our adversaries, including Russia, Iran, North Korea, and especially China, while maintaining counterterrorism tools that have demonstrated their effectiveness. This means empowering the right personnel to manage, build, and effectively execute actions dispersed throughout the IC to deliver intelligence in an ever-challenging world.” That said, as then-candidate Trump affirmed in 2023, it is essential also “to ensure that [intelligence agencies] are not spying on our citizens.” The IC must, therefore, have the legal authorities it needs to keep the country safe, with robust civil liberties protections and oversight, operating under a senior leadership team that knows how to use those authorities effectively and lawfully.
As we start the new year, the IC faces a pivotal moment. It must find ways to deliver “decision advantage” to policymakers in the face of evolving threats and rapidly changing technology. Policymakers in turn must understand the IC’s structure and capabilities, the effectiveness of which depends on key national security legal authorities and civil liberties safeguards.
This article examines the challenges and opportunities for the IC in 2025 and beyond, focusing on the leadership role of the Director of National Intelligence (DNI) in the context of the IC’s current structure, and the critical importance of FISA Section 702 as the IC’s premier intelligence tool. It highlights the need for collaborative leadership, proactive transparency, and robust oversight to maintain public trust as the IC acts to preserve, improve, and judiciously deploy its powerful authorities in the new year and beyond.
The IC Orchestra and its Conductor
At the outset, it is important to keep in mind that the IC is not a single, unitary entity. With 18 elements—16 of which are nested within six federal departments—and with an annual budget of $76.5 billion, the IC is both impressively resourced and confoundingly complex. It includes powerful and well-known agencies that have authorities for clandestine collection, such as the Central Intelligence Agency (CIA) for human intelligence, the National Security Agency (NSA) for signals intelligence, and the Federal Bureau of Investigation (FBI) for conducting national security investigations inside the United States. The IC also includes smaller offices such as the Department of Homeland Security’s Office of Intelligence and Analysis, and the Department of Energy’s Office of Intelligence and Counterintelligence. Although the IC elements share much in common in terms of intelligence priorities, tradecraft, culture, and overall mission, they also have their own specialized areas of focus and capability.
An apt way to think of the IC is as an orchestra. It works best when the elements are attuned to one another, using their instruments skillfully and harmoniously, with the musicians understanding and fulfilling their roles to their utmost abilities. Just as an orchestra has a conductor to help ensure that the music from the whole is better than the sum of its parts, so too does the IC, in the form of the Director of National Intelligence (DNI). As Senator Marco Rubio observed in a hearing in 2024, the DNI “acts as the conductor of the orchestra, and it’s a tough orchestra. Some of the instruments in that orchestra are bigger and more powerful than others, like the CIA.”
The IC’s current leadership structure owes much to the recommendations of the 9/11 Commission. That Commission found that the IC had failed to “connect the dots” of available intelligence in ways that contributed to its failure to predict and prevent the 9/11 attacks. Among the contributing factors, the Commission highlighted the organizational complexity of the IC, noting that structural barriers impeded all-important “joint intelligence work.” It found that the head of the CIA—then referred to as the Director of Central Intelligence (DCI)—held “too many jobs”:
The DCI now has at least three jobs. He is expected to run a particular agency, the CIA. He is expected to manage the loose confederation of agencies that is the intelligence community. He is expected to be the analyst in chief for the government, sifting evidence and directly briefing the President as his principal intelligence adviser. No recent DCI has been able to do all three effectively. Usually what loses out is management of the intelligence community, a difficult task even in the best case because the DCI’s current authorities are weak. With so much to do, the DCI often has not used even the authority he has.
In response, Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), which created the position of Director of National Intelligence (DNI). The IRTPA requires that the DNI have “extensive national security expertise,” and assigns the DNI the responsibility to “serve as the head of the intelligence community” while also acting as the “principal adviser to the President … for intelligence matters related to the national security.” The Act also assigned other responsibilities to the Office of the Director of National Intelligence (ODNI) in the areas of personnel, security, standards, policies, and the like. Reflecting on the impact of this separation of responsibility from the CIA, former CIA Director Michael Hayden noted: “The creation of the DNI freed up the director of the Central Intelligence Agency to spend every waking and sometimes not-so-wakeful moment running CIA. I cannot imagine doing that job [CIA Director], filling that function, if I had to do what [the DNI] had to do every morning.” Notably, Hayden had also served as Principal Deputy DNI and Director of NSA. Hayden’s sentiment was echoed by former Acting DCIA John McLaughlin, who in a December 2024 retrospective on intelligence reform, wrote:
As someone initially very skeptical of the idea, I’ve come to the view that the DNI, with all the changes, now performs an essential integration and tasking role for the intelligence community, while also providing a public face and locus of accountability for the whole intelligence enterprise. And as a former CIA official, once responsible for coordinating the work of the huge complex community while managing CIA’s global mission, I see the benefit of the DCIA now being able to focus more exclusively on the latter
As a result of the 9/11 Commission, the IRTPA also placed the National Counterterrorism Center (NCTC) within ODNI, as well as the National Counterintelligence and Security Center (NCSC). The Commission had called for the DNI to “oversee national intelligence centers to provide all-source analysis and plan intelligence operations for the whole government on major problems.” The ODNI now also includes the National Counterproliferation and Biosecurity Center (founded in 2005 based on the recommendations of the WMD Commission), the Cyberthreat Intelligence Integration Center, and the Foreign Malign Influence Center.
An important caveat to the centralization of the ODNI: the IRTPA limits the DNI’s authority over the other IC elements by stipulating that the ODNI must exercise its authorities “in a manner that respects and does not abrogate the statutory responsibilities of the heads of the departments of the United States Government concerning such departments.”
With such limited authorities and the challenging mission of integrating 18 different elements into a cohesive whole, the DNI’s task is an unenviable one. As former Representative Jane Harman, one of the architects of the IRTPA, noted in a discussion on intelligence reform in 2010: “We had to make compromises to get the bill through. You will all remember the implacable opposition of then-Secretary of Defense Rumsfeld. … [As a result, the DNI’s job is] 50 percent law and 50 percent leadership.”
This is a helpful characterization of the challenge facing a new administration as it seeks to ensure the IC is operating at optimal efficiency. The law gets the IC only partway there. The rest depends on leadership. This puts a premium on the expertise, judgment, experience and collaborative mindset of IC leaders.
Two decades after the 9/11 attacks, the former Chair and Vice Chair of the 9/11 Commission—Tom Kean and Lee Hamilton—looked back favorably on the progress made implementing their recommendations. They wrote:
[O]ne of the biggest challenges we identified—reforming intelligence and counterterrorism capabilities—has largely been achieved, making Americans much safer…. Over time, the DNI found its role…. It is focusing on long-term challenges requiring inter-agency coordination rather than micromanaging internal agency operations or seeking to control intelligence collection and covert action…. The DNI is recognized as the public face of the intelligence community, communicating a shared view on threats and priorities. It is leading community-wide initiatives related to privacy, civil liberties, transparency, and the implications of new and emerging technologies.
FISA Section 702
If the IC is an orchestra and the DNI its conductor, then one can think of the authorities enabling agencies to collect, analyze, and disseminate intelligence as the musical instruments. And there is no more important instrument than Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702 enables the government—acting primarily through NSA, which works closely with the FBI, CIA, and National Counterterrorism Center (NCTC)—to compel electronic communications service providers to hand over the communications of specific foreign intelligence “targets” (individual users of communications services) who must be non-U.S. persons located outside the country. Briefly, this is how Section 702 works: The government submits annual certifications to the Foreign Intelligence Surveillance Court (FISC) for its review and approval. The certifications include targeting, querying, and minimization procedures that the government must follow. The targeting procedures require that NSA document its reasonable assessment not only that the targets are non-U.S. persons abroad, but also that they are communicating foreign intelligence information that fits within an intelligence topic set forth in the certifications. As reported by ODNI, “[t]opics of certifications the FISC has approved to date include counterterrorism; combatting proliferation of weapons of mass destruction; and foreign governments and related entities.” The FISC-approved procedures contain other safeguards designed to protect privacy and civil liberties. Agency implementation is subject to a multi-layered compliance and oversight system.
Given the central position of the United States and its tech companies in global communications, it should come as no surprise that Section 702 is an extraordinarily valuable authority. Indeed, there is now broad consensus in the national security community on its importance. According to a joint letter to Congress from ODNI and the Department of Justice (DOJ), “Section 702 provides critical and unique foreign intelligence at a speed and reliability that the Intelligence Community cannot replicate with any other authority. The Intelligence Community relies on Section 702 in almost every aspect of its work and, as a result, the authority is essential to our national security.” As Sen. John Cornyn stated during the congressional debates on Section 702:
I call [Section 702] the most important law that most Americans never heard of. But it is an essential tool for our intelligence community to protect the American people against a whole array of threats… [T]he best I can tell, there is broad bipartisan consensus about the value of section 702…. Section 702-acquired information has helped combat terrorism, disrupt drug trafficking, thwart cyber-attacks, prevent our adversaries from trafficking in weapons of mass destruction, and much more.
Returning to the orchestra metaphor, the indispensability of Section 702 for national security is comparable to that of the violin for orchestral music. The violin’s “ability to shape the texture, balance the sound, and lead the ensemble makes it indispensable to the orchestral tradition,” earning its place as the “largest and most important section of the orchestra.” Of course, this assumes that the orchestra has a violin section at all. Section 702 must prove its worth periodically to continue to play its part, and its next test is rapidly approaching.
Section 702 Reauthorization
Since its passage in 2008, Section 702 has contained a sunset clause. If Congress does not reauthorize it before the sunset deadline, the authority lapses. Congress most recently reauthorized Section 702 in April, by passing the Reforming Intelligence and Securing America Act (RISA). RISA amended Section 702 in significant ways and reauthorized it for two years. It will be up for reauthorization again in April 2026. That means the reauthorization debate will recommence in the first year of the new administration. Given its importance, a top priority of the new administration should be to reauthorize FISA Section 702.
Of course, much depends on the position that President Donald Trump directs his administration to take. During the lead-up to the 2017 reauthorization vote then-President Trump posted anti-FISA tweets that caused considerable confusion on the Hill. He ultimately supported reauthorization, issuing a signing statement in which he said that Section 702 “has proven to be among the Nation’s most effective foreign intelligence tools” and “provides robust privacy protections for American citizens.” In April of 2024, as the House reauthorization vote neared, Trump again posted his opposition to FISA, this time on Truth Social: “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!” As a compromise, House Republicans moved up the sunset date by three years, so that Section 702 would be up for reauthorization again in 2026—during a second Trump term—rather than the originally agreed date in 2029.
There is reason to believe that in his second term, President Trump could again support Section 702 reauthorization. Trump’s public complaints about FISA appear to be directed at Title I of FISA rather than Section 702. Title I is a complex provision that, in essence, authorizes the government to conduct electronic surveillance that targets Americans inside the United States if the government first obtains an order from the FISC finding that there is probable cause to believe that the target is an agent of a foreign power. This is the authority that the FBI used to conduct surveillance on Carter Page after he had worked with the Trump 2016 election campaign; the FBI’s misuse of Title I motivated Congress to include a range of new restrictions and safeguards when they enacted the RISA Act. Although the FBI’s use of FISA Section 702 also generated serious concerns due to non-compliance with query restrictions on U.S. persons, those incidents did not involve the Trump campaign.
[Editor’s note: Readers may also be interested in Asha Rangappa’s Expert Backgrounder: Title I of the Foreign Intelligence Surveillance Act vs. Section 702 (2023)]In addition, people Trump has named for key national security posts have expressed strong support for Section 702, with the additional safeguards included in the RISA Act. John Ratcliffe, who has been identified as the future nominee for Director of the CIA, signed a letter endorsing the reauthorization bill, describing Section 702 as “one of the most critical tools the Intelligence Community has at its disposal [which] must be reauthorized.” Sen. Rubio, who is to be nominated for Secretary of State, strongly supported reauthorization through the RISA Act, stating that “702 is an indispensable national security tool. Without it, the United States would have lost our ability to spy on foreign adversaries.” Rep. Mike Waltz, whom Trump selected for National Security Advisor, has supported expanding some Section 702 authorities in the immigration context, and also recognized the need to balance Americans’ rights with this critically important national security tool.
Others, however, have called for more drastic changes to the authority. Kash Patel, whom Trump has named as his future nominee for FBI Director, has criticized the RISA Act for not going far enough in changing Section 702; he indicated that FISA remains an important tool, but one that needs “major, major reform.” Tulsi Gabbard, whom Trump has said will be his nominee for DNI, introduced a bill in 2020—the Protect Our Civil Liberties Act—which would repeal Section 702 outright. However, she also supported an earlier bipartisan legislative proposal to amend (rather than repeal) Section 702 (e.g., by prohibiting U.S. person queries in most situations), and highlighted her concerns that the government is abusing its authorities to infringe on the civil liberties of Americans.
Conducting the IC so that it achieves a harmonious and compelling position on reauthorization could thus prove to be a major challenge. As with many IC authorities, a foundational question involves its effectiveness. As civil society commentators have noted, “understanding efficacy—the goals of a surveillance program and how well it achieves them—is essential to striking a balance between privacy and civil liberties on the one hand, and public safety and security on the other.” Thus, prior reauthorizations efforts have focused on the interrelated goals of (a) demonstrating that the authority is effective, and (b) responding to civil liberties and privacy concerns.
Providing transparency into both the value of Section 702 and its impact on civil liberties is, therefore, essential to reauthorization. A leadership team that is unevenly committed to reauthorization could result in a discordant transparency effort. It could also result in disagreements within the administration on the collection, analysis, and dissemination of Section 702 intelligence, which could make transparency and reauthorization efforts even more challenging.
Transparency on the Value of Section 702.
During the intensive debates leading up to the most recent reauthorization, the government declassified and released important information about the importance of this authority. For example, the ODNI posted a document titled FISA Section 702 Value, which provides revealing metrics and lays out pages of examples (several of which highlight the value of U.S. person queries). Declassifying information about the positive impact of an intelligence method can be enormously challenging. The IC’s role in an operational success—indeed, in many cases, the mere fact of its involvement in an operation—can put at risk the future viability of the intelligence methods deployed. Such transparency requires leadership, commitment, and resources from across the IC, orchestrated by the DNI, to gather, examine, and ultimately declassify examples in a manner that ensures efficacy is not unduly compromised. Given the recency of these disclosures, the IC may well lean on its already-released examples to demonstrate the overall value of Section 702. That said, updates would be welcome, particularly those relating to the value of U.S. person queries.
Transparency on U.S. Person Query Compliance
Any serious push for 702 reauthorization will necessarily involve an intensive effort to ensure the IC in general and the FBI in particular are following applicable rules, and that compliance reports and records are promptly compiled, provided to Congress, and released to the public (with necessary redactions). A touchpoint will come when the ODNI posts the FISC order that approves the next set of certifications. The FISC customarily takes the recertification process as an opportunity to review the government’s compliance record, making clear that “[t]he government’s implementation of the current Section 702 procedures ‘can be relevant in determining whether proposed procedures comply with FISA’s requirements.’” In November 2024 the ODNI posted the recertifications that the FISC approved in April 2024, which included the 702 procedures for NSA, CIA, FBI, and NCTC, covering the period before the enactment of the RISA Act. In its opinion, the FISC examined the compliance incidents reported for the prior year, and found significant improvement for the FBI, although incidents continued to occur.
As the FISC noted in its April opinion, “[c]ompared to just a few years ago, the reported number of such queries using U.S.-person query terms has greatly decreased, which in and of itself indicates less intrusion into the private communications of U.S. persons.” Thus, another touchpoint will be the publication in April 2025 of the Annual Statistical Transparency Report, which, among other statistics, will report on the number of FBI U.S. person queries. In the report published in April 2024, the FBI reported 57,084 U.S. person queries for the period December 2022 – November 2023, down from 119,383 the year before; presumably, the number reported in 2025 will be lower still.
Also important are the FBI and DOJ audits of U.S. person queries. The FBI’s Office of Internal Audit released its initial audit results in 2023, and DOJ released additional results in 2024; the DOJ release showed a compliance rate for FBI U.S. person queries of 98%. The RISA Act continues to emphasize the importance of such audits by making them mandatory for all FBI U.S. person queries. It is important for the IC to reflect on the residual instances of non-compliance in a sober and balanced manner, taking them seriously but not out of proportion.
Transparency on RISA Act Changes
In April 2024, before approving the RISA Act, the House voted on a bipartisan amendment that would have required agencies to obtain a warrant before conducting a U.S. person query. This amendment fell short by the narrowest possible margin, failing in a 212-212 tie vote. A few days later, the Senate also voted down a bipartisan amendment to require warrants for U.S. person queries. The Biden administration argued that such a warrant requirement to “review lawfully collected information … would fundamentally undermine [Section 702’s] effectiveness.”
The RISA Act includes a series of changes to Section 702 that respond to concerns about the FBI’s U.S. person queries. For example, FBI personnel must obtain prior approval from a supervisor or attorney—who is not a political appointee—for a U.S. person query; more senior levels of approval are required for “sensitive queries” such as those focusing on an elected official or candidate; queries must be supported by written factual justifications; controls must require FBI personnel to “affirmatively elect” to include FISA 702 information when running a query; and queries involving members of Congress or their staff are subject to special requirements. In addition, the RISA Act removes from FISA the authorization it had previously granted to the FBI to conduct queries that are solely designed to find and extract evidence of a crime unrelated to national security. It also codifies the FBI’s practice of obtaining FISA 702 information only for targeted persons who are “relevant to an existing, open, predicated full national security investigation.” As of February 2024, the ODNI reported that this amounted to approximately 3.86 percent of Section 702 targets.
When the DNI and the Attorney General submit the next round of certifications to the FISC, they will need to include updated procedures that reflect new RISA requirements. In 2024, as alluded to above, the FISC ruled on these procedures in April; it took until November for the government to complete its redaction process and make the entire package public. Given that Section 702 will expire in April of 2026, the DNI will likely need to push the relevant government players to accelerate the normal timeline considerably, no mean feat given the multitude of other priorities that will undoubtedly be competing for IC leadership attention and the IC’s limited transparency resources.
Narrowing the Newly Expanded Definition of Electronic Communication Service Provider
In addition to these protections, the RISA Act included two important new provisions. First, it amended the definition of “electronic communications service provider” to go beyond services such as email and phone communications and include “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications” (excluding dwellings, public accommodations, food service establishments, and community facilities). This provision has raised serious concerns about the scope of Section 702.
The Senate Select Committee on Intelligence attempted to narrow this new authority in the Intelligence Authorization Act for Fiscal Year 2025 (IAA), by tying it to the type of service that was ruled on by the FISC in an opinion released in 2024, which is still significantly redacted. However, when Congress folded the IAA into the National Defense Authorization Act for Fiscal Year 2025—which President Biden signed into law on December 23, 2025—House Republicans reportedly removed the IAA’s narrowing of the definition, leaving it as it was in the RISA Act. Transparency into the type of provider at issue in the FISC ruling has obviously been challenging; continued efforts will be important to enable those concerned with the breadth of the RISA Act amendment to craft a more precisely focused definition.
A Certification for Illicit Synthetic Drugs?
The RISA Act made another significant definitional change, amending the term “foreign intelligence” to also include “international production, distribution, or financing of illicit synthetic drugs, opioids, cocaine, or other drugs driving overdose deaths, or precursors of any aforementioned.” With this amendment, the next logical step would be to add a certification covering the topic of international trafficking in illicit synthetic drugs to the existing certifications (as a reminder, the DNI has disclosed that those cover counterterrorism, combatting proliferation of weapons of mass destruction, and foreign governments and related entities). Interestingly, some commentators have pointed out that Pam Bondi, whom Trump has designated as his nominee for Attorney General, is likely to prioritize efforts to fight illegal influx of synthetic drugs and their precursors. Such a certification would also be consistent with a recommendation from the President’s Intelligence Advisory Board (PIAB), which in 2023 called for “the addition of a counternarcotics certification … [which] would allow the intelligence community … to become more effective in supporting the government in its fight against fentanyl.”
Changes in Intelligence Topics?
Beyond illicit synthetics, could there be other changes in the intelligence topics established for Section 702 collection? Civil liberties advocates have long complained that the definition of “foreign intelligence” is overly broad, even though the government has applied it relatively narrowly as evidenced by the topics of the Section 702 certifications. It is, therefore, possible that new IC leadership would seek to modify, add to, or pull back from those topics in the upcoming certification cycles. In this regard, note that the DNI leads the National Intelligence Priorities Framework (NIPF) process. The NIPF establishes the system to “[e]stablish, disestablish, manage, and communicate national intelligence priorities, reflecting customer priorities for national intelligence support, and ensuring that both enduring and emerging national security issues are effectively prioritized.” The President and the Assistant to the President for National Security Affairs (Mike Waltz)——establish the top tier priorities. Presumably, to the extent that the current NIPF priorities do not fully reflect those of the new administration, the President and the APNSA could invoke the NIPF process to change those priorities, which might trigger changes in Section 702 certifications.
Another point of reference is Executive Order 14086 on Enhancing Safeguards for United States Signals Intelligence Activities, the scope of which includes Section 702. That order establishes 12 “legitimate objectives” for signals intelligence. Unless the President formally updates that list as set forth in the Order, any new topic for certification will need to fit within those objectives. In any event, it is clear that public transparency on changes to intelligence topics will be important for earning and retaining trust. In that regard, the PIAB noted that even though Section 702 “is likely to be the most open and publicly-debated surveillance program in the world,” even more transparency is needed to dispel misunderstandings, and that such transparency is especially important regarding the topics of certifications..
Additional Restrictions?
If IC leadership in the new administration has additional concerns about Section 702 that it does not believe were adequately addressed by the RISA Act, then the need for the DNI and AG to submit new procedures to the FISC will present an opportunity for building in additional restrictions and safeguards. There is ample precedent for the IC taking protective measures beyond those required by statute. For example, Executive Order 12333 on Intelligence Activities and Executive Order 14086 both provide for civil liberties and privacy protections that extend beyond those required by FISA and other statutes. Such safeguards, for example, might include—for certain categories of U.S. person queries—approval, recordkeeping, auditing, reporting and transparency requirements that exceed those already mandated by the RISA Act.
One step that will help across the board is to push for a substantial increase in resources for compliance, oversight, and transparency across the IC. The growth in activity across the IC’s operational and analytic elements has never been matched by corresponding growth in resources assigned to those engaged in the vital tasks of ensuring that intelligence is collected and used in a manner that earns and retains public trust. The new administration could make a powerful statement demonstrating its commitment to civil liberties and transparency by ensuring that those performing this work are resourced in a manner commensurate to the vitality of their work.
Conclusion
The IC stands at a critical juncture as it navigates the complexities of evolving national security threats, technological advancements, and the imperative to safeguard civil liberties. Success hinges on both law and leadership. The new DNI will need to expertly orchestrate the IC’s diverse elements into a cohesive force capable of delivering decision advantage to policymakers through use of the IC’s most vital authority, FISA Section 702. Reauthorizing Section 702, with our without additional amendments, will require a compelling public reaffirmation not only of its value, but also of the effectiveness of its privacy safeguards. In particular, the IC must provide robust transparency into the status, impact, and effectiveness of the RIPA Act’s changes so that policymakers and the public can judge whether and how to further tune this critical instrument so that the IC orchestra can perform at its highest potential.
– Alex Joel (LinkedIn) is a Scholar-in-Residence and Adjunct Professor at the Washington College of Law, where he is part of the Tech, Law & Security Program. Published courtesy of Just Security.
