By Ashley Oliver & Reese Gorman. Media: Washingtonexaminer
Lawmakers have vowed all year to reform a powerful government surveillance tool that is set to expire at the end of the month, but House Speaker Mike Johnson (R-LA) reached an agreement with congressional leaders this week that would table reforms well into next year.
The agreement would attach a temporary reauthorization of Section 702 of the Foreign Intelligence Surveillance Act to the annual must-pass defense bill, extending unchanged access to the tool into April.
Johnson’s decision, a complete reversal from the position he had taken just one day earlier, has prompted a rush of anger and disappointment from some in his own party as well as from privacy hawks who say the Section 702 program needs to change because of the FBI’s past abuse of it.
Those same critics also warn that a short-term extension is problematic because it could actually allow the government to use Section 702 in its current form until 2025 by renewing its annual certification of the program, which expires in April and is separate from the statute that Congress passes that governs how Section 702 is used. The government cannot seek a certification renewal if the Section 702 statute has lapsed.
Rep. Warren Davidson (R-OH), one of the lawmakers at the forefront of reform efforts, highlighted this concern in a statement, describing it as a “loophole.”
Davidson said Johnson’s proposed April extension is a “bad idea.”
“I mean, earlier in the week, FISA wasn’t going to be part of the [National Defense Authorization Act], and I congratulated the speaker for standing up and fighting on the issue. So, I’m not really sure what changed,” Davidson said.
Amid the backlash, Johnson issued a “Dear Colleague” letter Thursday claiming the decision would buy “necessary time to facilitate the reform process,” and he vowed to hold full House votes on reform proposals next week.
House Majority Leader Steve Scalise (R-LA) elaborated Thursday afternoon that the House is going to try to vote on a full Section 702 reauthorization bill next week, which could avoid the short-term extension that has upset so many members.
There are currently two competing House bills from two different committees that would reauthorize Section 702 with hefty reforms, and Scalise said Republicans are trying to reconcile those differences but that doing so will be difficult. House Intelligence Committee members are dead set on their bill and strongly opposed to the House Judiciary Committee’s version of the reforms, and vice versa.
What is Section 702
Under Section 702 of FISA, the federal government is able to surveil foreigners without a warrant for national security purposes. The collected information becomes part of a vast database of foreign intelligence that incidentally includes information about U.S. citizens who may have been communicating with people overseas.
Intelligence officials, including those in the CIA and FBI, are able to access the database for the purpose of following national security leads.
Their ability to search the database for information related to U.S. citizens without a warrant has drawn criticism after declassified FISA court documents showed the FBI had inappropriately queried the database hundreds of thousands of times in recent years, including for data related to U.S. campaign donors, George Floyd protesters, and Jan. 6 riot suspects.
After the privacy breaches were uncovered, the FBI said it began making internal reforms in the summer of 2021. A recent declassified FISA court opinion said the internal reforms were having their “desired effect” and that the FBI’s noncompliance with Section 702 had dropped sharply to below 2%.
Intelligence officials have been emphasizing to Congress all year that Section 702 is vital to national security, saying it routinely protects the country from terrorist attacks, cyberattacks, and other threats from foreign adversaries.
The Department of Justice and FBI detailed numerous specific examples in recent letters to Congress of how they have used the tool to thwart assassination attempts, prevent bombing plots in the U.S., and respond quickly to destructive ransomware attacks. The DOJ also pointed to the Israel-Hamas war, saying terrorists are “seeking to exploit” the conflict, which “[raises] the specter of increased terrorist violence here at home.”
Intelligence Committee member Rep. French Hill (R-AR) said, “I’ve expressed strong concerns to Speaker Johnson that under no circumstances should Section 702 expire when we’re in the midst of global conflict.”
But, Hill added that reforms to Section 702 are essential and that most people agree on that. They just disagree on what reforms they need to make and how far the reforms should go.
Competing reform bills
Section 702 was last reauthorized under former President Donald Trump six years ago with minimal changes. It will sunset on Dec. 31.
The House Intelligence Committee and the House Judiciary Committee made announcements about their own respective Section 702 reform bills within hours of each other on Wednesday. The Senate Intelligence Committee introduced its version of reforms last month.
While the House committees largely agree on a bipartisan basis on changes they want to make to Section 702 to address the FBI’s past misuse of it, their bills’ warrant provisions differ drastically.
The Judiciary Committee’s version would require all government officials querying information about U.S. citizens to obtain probable cause warrants, while the Intelligence Committee’s version only includes a warrant requirement for FBI officials, and the warrant requirement would only apply to a limited number of situations.
Judiciary’s bill also reauthorizes Section 702 for three years, while Intelligence’s reauthorizes it for eight.
“Judiciary actually gives constitutional rights to foreigners and potential criminals and effectively neuters the FISA 702 elements altogether,” Intelligence Committee member Rep. Mike Garcia (R-CA) said. “I can’t overstate how galactically damaging passing the Judiciary FISA bill would be.”
The Judiciary’s bill, which passed the committee in a rare 35-2 bipartisan vote, is a nonstarter for the intelligence community, whose position is that warrants would cripple the program.
Rep. Andy Biggs (R-AZ), a subcommittee chairman and co-sponsor of the Judiciary Committee bill, called it “one of the most consequential pieces of legislation ever related to ending government surveillance abuse.”
Underscoring the ongoing dispute between the two committees, however, Intelligence Committee Chairman Mike Turner (R-OH) said Thursday morning, “Under their bill, 702 information would not be admissible in criminal prosecutions for horrific crimes such as child pornography, human trafficking, murder, and even money laundering. These are provisions of their bill that they’re going to have to explain.”
A Judiciary Committee spokesman shot back in a statement, “We must remember this law is called the FOREIGN INTELLIGENCE Surveillance Act. It’s used for terrorism and national security threats, and prosecutors have all the tools they need to prosecute those types of cases without it. The intelligence community shouldn’t be using it as a ‘catch-all.’”
FBI Director Christopher Wray told Congress this year that inserting probable cause warrants into the process of querying the surveillance database would render Section 702 “basically useless” because of the time-sensitive nature of their searches.
“Agility and speed” are essential to using it, Wray said.
In a memo reviewed by the Washington Examiner, the DOJ said the Judiciary Committee’s bill would result in “long delays that will be completely incompatible with the need to nimbly obtain court authorities to foil national security threats.”
But, Judiciary Committee members disagree and believe the Intelligence Committee’s bill doesn’t go far enough and instead allows the abuses to carry on.
“The core differences that we’ve had, I think they’re somewhat irreconcilable, and I think the program is important. I would prefer that it continue to exist with reforms, but the meaningful reforms are in the Judiciary bill,” Davidson said.
Frustration with Speaker Johnson
While the committees disagree on how far to go on the reforms, one thing they, and other members of the House, agree on is a dissatisfaction with how Johnson has handled the situation.
“I’d like to see earlier play calling and more resolve on these play calls and doing what’s best in the interests of the United States and not necessarily a few members of Congress who are lobbying him maybe more than others,” Garcia said. “At some point, you’ve got to make a call and stick with it and hope the team gets behind it.”
When it was announced on Wednesday that Johnson would be including a short-term extension of Section 702 in the NDAA, many lawmakers expressed strong opposition and criticized the speaker.
On the House floor after votes on Thursday, Johnson was engaged in an animated conversation with members of the House Freedom Caucus and Rep. Matt Gaetz (R-FL), who were expressing their displeasure with the speaker’s decision.
Gaetz said he does not support the NDAA because of the FISA provision, and said that he expressed that to Johnson.
Gaetz led the ouster of Rep. Kevin McCarthy (R-CA) from the speakership, ultimately resulting in Johnson’s ascension to the gavel.
When asked if he is happy with Johnson’s performance, Gaetz said, “I want the speaker to be successful.”
Rep. Marjorie Taylor Greene (R-GA), who is not on the Intelligence or Judiciary committees but was a member of the NDAA Conference Committee, said she is disappointed with how Johnson handled the NDAA process and that the inclusion of a short-term extension of Section 702 was one of the reasons she disapproved.
She accused Johnson of cutting “a deal with Chuck Schumer,” the Democratic Senate majority leader, to keep liberal policies in the defense bill and extend Section 702 without reforms.
“Anybody that is paying attention should be noticing that there’s literally no change,” Greene said, adding that Johnson “went in and made a backroom deal.”
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