In an unusual twist, far-left Democrat and right-wing Republican House lawmakers find themselves on the same side in demanding that any extension of spying powers granted to U.S. intelligence agencies ends authorizations of warrantless surveillance.
Lawmakers must consider whether to reauthorize the Foreign Intelligence Surveillance Act (FISA) with or without its infamous Section 702, which allows for warrantless surveillance. Section 702 was extended temporarily for four months last December after lawmakers could not agree on how to deal with alleged abuses associated with the power, as reported by The Dallas Express. FISA is set to expire on April 19.
A number of Republicans have vowed to oppose any reauthorization of FISA that does not require obtaining a warrant for targeting persons in the United States.
“The federal government must be required to obtain a warrant for ALL searches of U.S. persons,” posted Rep. Andy Biggs (R-AZ). “The FBI conducted 3.4 million warrantless searches of Americans’ private communications in 2021. Get a warrant.”
The warrantless searches have many lawmakers and experts on both sides of the political aisle concerned that the current iteration of FISA violates Fourth Amendment protections against unreasonable searches and seizures.
Rep. Chip Roy (R-TX), who sits on the House Rules Committee that would have to clear the reauthorization bill, posted on X that FISA currently requires that the FBI inform members of Congress if they are being investigated, however, no such courtesy is extended to ordinary citizens.
“FISA requires members of Congress to be notified if they are investigated by the FBI… but the government can spy on Americans without their knowledge?” he posted. “More rules for thee but not for me…”
Roy’s colleague on the committee, Rep. Thomas Massie (R-KY), echoed that sentiment, posting, “Incredibly, the same Congressmen who just voted to give the FBI $200 million for a new building … are arguing we can’t possibly require warrants for domestic FISA searches … because a few FISA judges would each need to have a special room (SCIF) built to handle the warrants.”
Sen. Mike Lee (R-UT) accused fellow Republicans in the House of using a Russian threat diversion to avoid passing a FISA bill without the warrantless search authorization.
“Just a few weeks ago, the House was ready to pass legislation prohibiting warrantless searches of Americans’ private communications under FISA 702. A few House Republicans then created a fake ‘national security’ distraction and convinced the House to adjourn. Shameful,” Lee posted.
Some Democrats, including Rep. Jerry Nadler (D-NY), are also harping on the issue. Last year, as the House Judiciary Committee debated reauthorization, Nadler expressed his concerns with Section 702.
“I am deeply uncomfortable, as we all should be, with the legal fiction that it is permissible for the government to search our most private communications without a warrant simply because they were aiming for non-U.S. persons overseas,” he wrote.
As DX reported earlier this month, the FBI has not sat idle while lawmakers debate extending Section 702. The agency has produced its own sleek brochure touting the crime-fighting accomplishments purportedly made possible by 702 powers.
The intelligence agencies have opposed any requirement to seek a warrant for surveillance, claiming that they would lose valuable time in confronting overseas threats that the country cannot afford, as reported by The Hill.
Still, Section 702 has advocates among Republican lawmakers. As DX reported, Sen. John Cornyn (R-TX) has defended the provision on the grounds that it is purportedly aimed at foreign threats and that any information collected on U.S.-based persons is incidental. Furthermore, if law enforcement wanted to target a U.S.-based person directly, they would have to seek the proper warrant.
However, some critics of warrantless spying claim Cornyn’s argument does not deal with another potential abuse of its powers, namely blackmail. That was the question posed in December 2023 by Nate Cain, a Republican candidate for Congress in West Virginia.
“I’ve been warning for some time that surveillance tools like section 702 of FISA are likely being abused to collect blackmail on members of Congress, Judges, Corporate Executives, etc.” Cain wrote on X. “How many are compromised? Is this why they voted to give the FBI money for a bigger HQ?”
On Wednesday, a group of 19 Republicans led by Rep. Matt Gaetz (R-FL) joined a number of Democrats to block the FISA renewal that House Speaker Mike Johnson (R-LA) supported but did not include a warrant requirement for using intelligence gathered on U.S.-based persons, as reported by The Hill.
The Republican holdouts appeared to be galvanized by former President Donald Trump, who came out vociferously against the bill, per The Hill. Trump posted on his Truth Social platform, “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!”
Gaetz released a statement after the vote, explaining why the legislation was blocked:
“The reauthorization lacks essential reforms to protect Americans’ Fourth Amendment rights, such as requiring the FBI to obtain a warrant before searching Americans’ data and a prohibition on the government purchasing Americans’ data from third-party data brokers.”
Gaetz claimed that a better version of the bill was possible, but Johnson has resisted considering it.
“Last year, in the House Judiciary Committee, I voted for a bipartisan bill that contained necessary reforms to protect Americans from unconstitutional searches. Unfortunately, Speaker Johnson has sided against holding a House vote on that bill and is instead trying to rush legislation drafted in a way that could expand authorities for the FBI to violate Americans’ right to privacy,” he said.
On Friday, the bill was back on track for a floor vote after the reauthorization’s renewal period was paired back from five years to two, pulling back enough of the anti-FISA Republicans.
The Biden administration, which has been a strong proponent of preserving Section 702 in its current form, was not pleased with the shorter renewal period, per The Gazette.
According to Rep. Bob Good (R-VA), who joined Gaetz in opposing the bill, the rationale behind backing it with a shorter sunset provision was that Republicans hope to have more leverage over the government the next time renewal is considered.
“We’re hopeful that we will have a Republican Senate, Republican House, and a Republican in the White House,” Good said, per The Gazette.