Opponents of a controversial 9/11-era intelligence-gathering law feel they were denied a chance to fix it this week when House leaders kept the issue from coming to the House floor.
“I wish we were proceeding right now,” said Rep. Jim Jordan (R-Ohio), chair of the House Judiciary Committee, which had approved its own bipartisan overhaul last year.
“Unless @SpeakerJohnson takes action, FISA reform has stalled,” posted Rep. Warren Davidson (R-Ohio) on social media Thursday, referring to the Foreign Intelligence Surveillance Act.
At question was the so-called Section 702 authority, named for a section of FISA that allows the government to keep tabs on foreigners outside the U.S. suspected of spying. The law, created to prevent another terrorist attack like the one on Sept. 11, 2001, from happening again, is set to expire in April after it was extended in a defense policy bill passed in December.
Following Sept. 11, the George W. Bush administration began a massive, and largely secret, surveillance program to keep tabs on foreigners outside the U.S. who were suspected of spying, which included illegally intercepting electronic communications, including emails between Americans and suspected foreign terrorists, without getting warrants.
In 2008, after the program had come to light, Congress gave its retroactive blessing to it with Section 702. Since then, civil liberties advocates have tried to narrow the authority’s scope each time it has come up for renewal. Recent arguments against it have focused on eliminating so-called backdoor searches, in which a query on a foreign person is conducted in such a way it’s likely to bring up information on an American.
Though the extension of 702 authority is set to lapse in coming months, House leaders tried to bring it to a renewal vote this week before then abruptly announcing Wednesday it would not come to the floor Thursday. In a social media post, a spokesperson for House Speaker Mike Johnson (R-La.) said the delay was “to allow Congress more time to reach consensus.” There was no indication of when the vote might be rescheduled.
It was an echo of December, when House leaders were going to let Jordan’s Judiciary Committee bill to overhaul 702 authority go to a floor vote, alongside a competing bill from the House Intelligence Committee, headed by Rep. Mike Turner (R-Ohio), that critics say would do little to fix Section 702 despite cutting back sharply on the number of people who could perform queries and enhancing penalties for misuse. But the plan was shelved before the votes could happen.
The fight has split Congress in unusual — and bipartisan — ways. Rep. Jerry Nadler (D-N.Y.), a liberal Democrat who is the top-ranking minority party member on Jordan’s Judiciary Committee, for example, is firmly in the overhaulers’ camp.
“It’s bad news for the country, because FISA, as it is now, lacks basic protections, particularly the warrant requirement we want to put in,” Nadler told HuffPost.
Unlike December’s competing bills, the original plan for Thursday was a consensus bill but with competing amendments that would tweak it either toward major changes or toward a more status quo path.
One of those amendments would have required that warrants be issued for surveillance searches likely to turn up information on Americans that would otherwise be subject to domestic probable cause requirements. That was intended to close the backdoor search loophole in which searches for foreign contacts could be set up to also capture incidental activities of Americans.
“My understanding is that Turner went to the speaker and said if he made our amendments in order, they’d take down the rule,” Nadler said, meaning the bill could not come to the floor.
“I thought our amendment was going to win,” Jordan said.
Turner spoke with a small group of reporters Wednesday but declined to take any questions on the issue. An email to his office asking for comment on Nadler’s allegation went unanswered.
The bad blood between those who want to revamp Section 702 and those who don’t has even spilled out publicly.
On Wednesday, Turner issued a statement about an unidentified but imminent national security threat, offering to allow House members to be briefed in a highly secure room inside the Capitol complex. The vagueness of the statement raised alarm, prompting Johnson to release another statement to reassure the public.
On Thursday, Rep. Andy Ogles (R-Tenn.) sent a letter to Johnson asking for an inquiry into Turner’s statement, suggesting it was meant to sway lawmakers to favor Turner’s positions on FISA and additional aid for Ukraine in its defense against Russia’s invasion.
“This act constituted poor judgment at a minimum and a complete breach of trust influenced by the pursuit of a political agenda at a maximum,” Ogles wrote.
Turner shot back with his own statement, saying the language in Wednesday’s statement had been vetted by the White House and its release had been approved by the House Intelligence Committee on a 23-1 vote.
With two approaches to renewal, competing bills and then competing amendments, having now gone by the wayside, it’s unclear what the next step will be.
Nadler said he feared an extension without big changes would be attached to yet another must-pass temporary government funding bill, once again nixing chances for a revamp. Parts of the government will see their funding lapse on March 1 unless new funding is approved. With only a few working days scheduled before then, expectations on Capitol Hill are high that another stopgap bill will be needed.
Asked about the possibility a temporary funding bill would be used as a vehicle for a relatively clean 702 extension, Jordan said, “I hope not.”