The battle over the government’s foreign-surveillance powers pits GOP security hawks against an alliance of progressives and civil libertarians.
The battle over the government’s foreign-surveillance powers pits GOP security hawks against an alliance of progressives and civil libertarians.
O ur editorial today opines that the statutory authority of U.S. spy agencies to target non-Americans outside the United States for national-security surveillance — known as Section 702 of the Foreign Intelligence Surveillance Act (FISA) — must not be permitted to lapse, particularly at this perilous time.
At the moment, it appears that Section 702 will be extended for four months, until late April 2024. That is not certain, but it looks to be the most likely scenario.
The state of play is as follows.
The Senate has been debating two competing proposals. One is advocated by Intelligence Committee chairman Mark Warner (D., Va.) and such GOP security hawks as Senators Marco Rubio (R., Fla.) and Lindsey Graham (R., S.C.), with backing from the Biden administration and its intelligence agencies. The proposal would make some meaningful but not drastic changes to FISA, such as (a) limiting the crimes for the investigation of which the FBI would be allowed to query the foreign-intelligence database (cyberattacks, infrastructure attacks, or crimes likely to cause loss of life), and (b) enacting into law internal FBI reforms that have markedly reduced incidents of intentional and accidental noncompliance with Section 702 “minimization” (i.e., privacy) rules. The proposal would have a sunset provision, but would not lapse until 2035. (It will probably not surprise you that I support this reform proposal and the likeminded proposal in the House, which I will come to momentarily.)
The other Senate proposal, spearheaded by Senators Ron Wyden (D., Ore.) and Mike Lee (R., Utah), and supported by an alliance of civil libertarians and progressives, would drastically overhaul Section 702. Most prominently, it would require the FBI to get a warrant in any circumstance in which it wanted to query the foreign-intelligence database for information about an American. It would sunset in four years.
Meanwhile, to give Congress more time to debate and reform Section 702, the Senate has included in the National Defense Authorization Act (NDAA) a four-month “clean” extension — meaning the provision would continue as is into late April. Some critics who want sweeping 702 reform argue that the four-month extension would really leave the provision unchanged until 2025 because, by the time we get to April 2024, the Foreign Intelligence Surveillance Court will likely have signed off on the Section 702 programs, as it does annually.
In the House as in the Senate, there are two competing bills, but each is proposed by the Republican leader of a committee. The Intelligence Committee proposal, spearheaded by chairman Mike Turner (R., Ohio), resembles the Senate Intelligence Committee plan — it would make significant but not drastic changes to Section 702. It is supported by such former Trump national-security officials as Bill Barr, Mike Pompeo, John Ratcliffe, and Robert O’Brien, and many other former national-security officials, including Michael Mukasey and Mike McConnell. The Judiciary Committee proposal, pushed by chairman Jim Jordan (R., Ohio) and Representative Andy Biggs (R., Ariz.), calls for a drastic overhaul of FISA. Like the Wyden/Lee Senate proposal, it would impose warrant requirements and even protections for foreigners. It has drawn strong support from progressive Democrats, including Representatives Pramila Jayapal (D., Wash.), Rashida Tlaib (D., Mich.), and Jerrold Nadler (D., N.Y.), as well as such left-leaning and Islamist groups as the ACLU, CAIR (the Council on American–Islamic Relations), and Muslim Advocates.
This has caused a headache for Speaker Mike Johnson (R., La.). Usually, House leadership settles on a single proposal and seeks to rally support for it. Johnson, however, seems too torn to do that. The bloc backing drastic reform that would largely dismantle Section 702 is supported by several ardent allies of former president Donald Trump, the heavy favorite to be the Republican presidential nominee in 2024 (although I would note that former Intelligence Committee chairman Devin Nunes, a staunch Trump supporter who left Congress to run the former president’s media venture, joined the above-mentioned former Trump national-security officials in supporting the Turner proposal). Johnson is loath to offend the pro-Trump bloc. On the other hand, he cannot be keen to align with progressive Democrats on a proposal which would (a) gut intelligence-collection against enemies of the United States, and (b) deeply damage supporters politically if there is a terrorist attack or some other national-security crisis that graphically illustrates the folly of gutting 702.
Rather than decide between the competing proposals, Johnson initially suggested a bizarre “Queen of the Hill” process in which both would be voted on and the one that garnered the most support would be adopted as the House bill. Not surprisingly, this manner of legislating pleased no one. Meantime, recriminations between the Turner and Jordan camps reportedly led to a Republican meltdown at a hastily called conference meeting Monday night. The result is that, at least for now, the Queen of the Hill gambit has been abandoned and neither GOP proposal will be voted on this week — the last week the House is scheduled to be in session before the holidays.
With the reformers at loggerheads, the four-month extension tucked into the NDAA is looking more likely. This rubs the wrong way not only those who want drastic 702 reform but also lawmakers — mostly conservatives — who recoil at the insertion of unpopular measures into so-called “must pass” legislation, such as the annual NDAA. As a result, the House Rules Committee, through which proposed legislation must normally go before reaching the floor for a vote, may not agree to a bill with the “clean” Section 702 extension adopted by the Senate.
Nevertheless, as Fox News’s Chad Pergram explains, there is a way around that. Under the rule known as “suspension,” Johnson could bypass the Rules Committee — further enraging advocates for drastic Section 702 reform and some conservatives — and bring the NDAA up for a full House vote. In such circumstances, a two-thirds supermajority (rather than the usual simple majority) would be needed for passage. Still, given the importance of the NDAA and the fact that most members of the House are not as agitated about a clean four-month extension as the minority that wants to overhaul Section 702, it would likely pass. (The major NDAA controversy is not over Section 702; it is over the Republicans’ insistence on including major border-security enhancements — i.e., the reversal of disastrous Biden policies — as a price for enacting more Ukraine aid.)
At the moment, then, it looks as if the Section 702-reform fight will be carried into next year, but it’s a fluid situation. All we can say with certainty is that the provision will expire at the end of this month if something is not done to reauthorize it, at least temporarily.