OPINION — “In order to allow Congress more time to reach consensus on how best to reform FISA (Foreign Intelligence Surveillance Act) and Section 702 while maintaining the integrity of our critical national security programs, the House will consider the reform and reauthorization bill at a later date.”
That was a social media post last Wednesday from Raj Shah, a spokesman for House Speaker Mike Johnson (R-La.), a day before a measure to reform FISA and particularly Section 702 was to be brought to the House floor for debate. Without congressional action, Section 702 is set to expire on April 19.
As I wrote last December, Section 702 permits the government to gather foreign intelligence information via electronic surveillance that is targeting specific foreign persons or entities located outside the U.S., even when some intercepted communications may have traveled on U.S.-operated Internet platforms, telephone or cable companies.
Gen. Paul Nakasone, who just retired as Director of the National Security Agency (NSA), has described Section 702 as “perhaps our most important authority, that we utilize day in and day out. It provides us an agility to do so much of what we need to do to provide insights to policymakers and warning to our military commanders.”
“When it comes to…what Russia is doing in Ukraine, it [Section 702] has proved vitally important,” Deputy Attorney General Lisa Monaco said back in April 2023 during an appearance before the Senate Judiciary Committee. Section 702 “has helped us uncover gruesome atrocities in Ukraine, including the murder of noncombatants, the forced relocation of children from Russian-occupied Ukraine to Russia, and the detention of refugees fleeing violence by Russian personnel,” she said.
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However, one of the controversial issues surrounding renewal is that some of a foreign target’s messages collected under Section 702 may incidentally be sent to or from American citizens or may discuss information concerning a U.S. person.
That’s important because it means that incidentally gathered information on U.S. citizens has been obtained without a judicial warrant, but nonetheless up-to-now has been stored as legally gathered intelligence and available for review by the FBI for use in domestic criminal cases.
FBI Section 702 searches are governed by a set of internal Bureau rules and procedures designed to protect Americans’ privacy and civil liberties, but critics say that loopholes allow FBI personnel to look through the emails and other communications of American citizens – as opposed to foreign adversaries – without proper, legal justification.
The American Civil Liberties Union has claimed, “Information collected under the law [Section 702] without a warrant can be used to prosecute and imprison people, even for crimes that have nothing to do with national security. Given our nation’s history of abusing its surveillance authorities, and the secrecy surrounding the program, we should be concerned that Section 702 is and will be used to disproportionately target disfavored groups, whether minority communities, political activists, or even journalists.”
On Capitol Hill, the debate over Section 702 has created a conflict between the House Permanent Select Committee on Intelligence and the House Judiciary Committee. Each panel has put forward its own reform bill to reauthorize FISA and Section 702.
The House Intelligence panel’s proposed bill would expand use of Section 702 to collect information on foreign nationals involved with illicit drugs such as fentanyl. It also would permit immigration officials to query previously collected Section 702 information to vet foreign nationals seeking to travel to the U.S.
In contrast, the House Judiciary Committee proposal, among other reforms, would require the FBI to get judicial, probable cause, warrants to query Section 702 data for information about American citizens and would ban law enforcement from purchasing commercially available location data about American citizens that would otherwise require a warrant.
Both committees include reforms designed to provide more oversight on how the FISA court approves surveillance programs and how the FBI and others query already-collected Section 702 information.
However, the Intelligence Committee members, reflecting the Intelligence Community’s view, strongly oppose the requirement for warrants to query collected Section 702 data because they fear that might take too much time. The Judiciary Committee members, along with demanding warrants, just as strongly oppose expanding Section 702 coverage to include drug dealers and the proposed use of Section 702 data to check foreign travelers seeking to come to the U.S.
Given the competing reform bills, Speaker Johnson at first wanted to bring both measures to the House floor for debate and see which one got a majority vote. When there were complaints about that approach, he had members of both panels sit together and come up with a single bill which was then to be open for amendment.
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However, because the revised single bill mostly reflected the House Intelligence approach, it drew criticism when brought up at the House Rules Committee last Wednesday in preparation for floor debate on Thursday.
House Judiciary Committee Chairman Rep. Jim Jordan (R-Ohio) and Rep. Jerrold Nadler (D-N.Y.), the ranking minority member, appeared together to support their version of the Section 702 reform measure, causing House Rules Committee Chairman Rep. Tom Cole (R-Okla.) to remark, “We think this is the first time you two have ever been here on the same side on any issue.”
Nadler criticized Speaker Johnson’s earlier approach of having the two bills competing for votes, describing it as “a strategy that more resembled a TV game show than regular [congressional] order.” He described as “highly suspect,” the new plan of “advancing a vanilla-based bill and asking us to vote on the controversial items individually with no time to review the amendments… The strategy is so unwieldy that if two or three of the expected amendments are adopted in combination there may be nobody left to support the bill.”
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On Wednesday, after the Jordan-Nadler testimony, the Rules Committee went into recess with the expectation that ranking House Intelligence Committee members would appear and thereafter a rule would be discussed so the measure could come to the house floor last Thursday with amendments to be debated.
Instead, the Speaker’s Office announced that the entire matter was being pushed to be considered at a later date.
Meanwhile, the House has adjourned for what is called a ‘District work period’ and House Members are not scheduled to return until February 28. That is just three days before the March 1, the initial spending deadline for some appropriations bills to be passed.
By March 1, Congress must pass four appropriations bills: Transportation / HUD , Agriculture, Rural Development, Food and Drug Administration, and Related Agencies; Energy and Water Development (which contains funds for nuclear weapons); Military Construction, Veterans Affairs, and Related Agencies.
By March 8, Congress must pass the remaining eight appropriations bills: Commerce, Justice, Science, and Related Agencies; Defense; Financial Services and General Government; Homeland Security; Interior, Environment, and Related Agencies; Labor, Health and Human Services, Education, and Related Agencies; Legislative Branch; and State, Foreign Operations, and Related Programs.
Also waiting House approval is the $95 billion National Security Supplemental which contains funds for Ukraine, Israel, Taiwan, and U.S. military operations in the Red Sea. Speaker Johnson has said he favors money for Ukraine but will not bring the Senate-passed legislation up for a vote unless it contains funds for the U.S. border. That’s an odd position since just weeks ago GOP Senators killed a similar bipartisan bill with money for Ukraine and others that had contained funding for the border after former President Donald Trump and then Speaker Johnson said they opposed it.
The backup of key appropriations bills means the country is facing the possibility of a legislative breakdown at home. Congressional delays have already had direct, serious effects on problems abroad — specifically in Ukraine and may eventually interfere with U.S. intelligence collection if Section 702 is not reauthorized.
Where are the leaders who can get Congress working in a bipartisan manner again?
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