FISA reauthorization fight creates fissures in both parties over malign foreign threats

The House bucked an effort by left-wing Democrats and right-wing Republicans to upend the surveillance program last week. Now it heads to the Senate.

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Senate Majority Leader Chuck Schumer (D-NY) and Speaker of the House Mike Johnson (R-LA) listen during remarks at a Capitol Menorah lighting ceremony at the U.S. Capitol Building on December 12, 2023, in Washington, D.C.

The legislation reauthorizing the Foreign Intelligence Surveillance Act was delivered to the Senate on Tuesday, where a bipartisan coalition is expected to come together to beat back an attempt from the fringes of their respective parties to upend a major surveillance program amid rising geopolitical threats. 

Whether that group can delay the bill’s passage beyond Thursday afternoon, when the Senate is scheduled to recess, remains to be seen. If the upper chamber cannot secure a time agreement to get the bill passed by then, Senate Majority Leader Chuck Schumer (D-NY) could keep members in D.C. for an extended work period. A Schumer spokesperson told JI on Tuesday that it was “too soon to say” if the majority leader will be able to schedule a vote this week. 

Members of all stripes have been holding their cards close on the FISA matter, with only a handful outside of Senate leadership publicly committing to voting one way or the other. Most senators say they’re still reviewing the bill, which passed the House on Friday with the help of 126 Democrats and 147 Republicans. 

House Speaker Mike Johnson (R-LA) made a rare tie-breaking vote to kill an amendment from Rep. Andy Biggs (R-AZ) that would have revoked the FBI’s warrantless surveillance capabilities through the wiretapping law known as Section 702, something that would have ultimately destroyed the bill’s chances of passing either chamber. 

The Biden administration had lobbied to kill the Biggs amendment, with both National Security Advisor Jake Sullivan and Attorney General Merrick Garland personally reaching out in the lead-up to the vote to undecided lawmakers, two lawmakers told JI on condition of anonymity to discuss a sensitive legislative matter. Members of the White House’s legislative affairs team and intelligence community officials were also camped just off the House floor during the vote to speak to lawmakers concerned about continuing to allow spy agencies to collect the communications between Americans and noncitizens suspected of threatening national security. 

The legislation, without Biggs’ amendment, is expected to pass the Senate along similar lines. Factions of both parties are expected to oppose the bill over privacy concerns, while a bipartisan coalition is expected to come together to pass the legislation to address the national security threats referenced by House Intelligence Committee Chairman Mike Turner (R-OH). An opposing bipartisan group will also work to sink the bill, though that coalition is not a majority of the Senate. 

A source familiar with Schumer’s thinking tells JI that the upper chamber will bring up the legislation sometime this week. Both Schumer and Senate Minority Leader Mitch McConnell (R-KY) praised the compromise bill (without Biggs’ amendment) as a vast improvement to previous versions. 

Turner took to the floor last Friday to document how 702 remaining warrantless is critical to efforts to swiftly address imminent threats to the homeland. Turner, who had led the FISA reauthorization push on the GOP side for months, said Friday that the implementation of a warrant would “provide constitutional rights to our enemies” as threats grow. 

“We spy on Hezbollah, we spy on Hamas, we spy on the Ayatollah, we spy on the Communist Party of China,” Turner said. “This bill provides them constitutional protections to communicate with people in the United States to recruit them for the purposes of being terrorists, for being spies, and for doing espionage.”

“The 9/11 perpetrators were in the United States, and they were communicating with Al-Qaeda. At that time, we made a grave mistake in that we were not spying on Al-Qaeda, and we didn’t see whom they were communicating with within the United States,” he continued. “We changed that, and we began to spy on Al-Qaeda, and we got to see the extent to which they were recruiting people in the United States to do us harm.”

Lawmakers on both sides of the aisle who voted to kill the Biggs amendment and advance the full reauthorization told JI they had the same reason for doing so: national security concerns.

“Now more than ever, I think there’s the greatest amount of opportunity for a terrorist attack, and we got to be ready for that,” Rep. Tony Gonzales (R-TX), who voted against the amendment and for the final bill, said. “We’ve got to give law enforcement every tool they need to prevent terrorism.”

“We were flirting with a very dangerous situation, but fortunately it failed,” Rep. Mike Rogers (R-AL), who chairs the House Armed Services Committee, said. 

Rep. Adam Schiff (D-CA), the former House Intelligence Committee chairman, said, “I thought it was too broad a requirement that would impair the intelligence community’s ability to address Chinese efforts to steal American technology, ransomware attacks and other vital national security matters. And I think there was a better approach, that was not an amendment and would have been more targeted.”

“This critical national security tool allows the United States to monitor communications of our adversaries outside of the United States – not American citizens – who are threats to our safety,” Rep. French Hill (R-AR) said in a statement. “The impact that Section 702 collections have on protecting the homeland in countering terrorism and assessing the intention of those who would threaten American interests cannot be overstated.”

“With our southwest border wide open and our nation at the highest terror threat alert since 9/11, passing FISA today was non-negotiable,” he added. 

Rich Goldberg, a senior adviser at the Foundation for Defense of Democracies, told JI that the U.S. would “face severe consequences with respect to collection against all threats, Iran included,” if Section 702 expired. 

Those who supported the amendment and opposed the final bill without that language described the national security concerns as secondary to privacy rights. 

Asked if he was concerned about the national security threats raised by Turner, Rep. Ryan Zinke (R-MT), who served as former President Donald Trump’s interior secretary, told JI that, “What I’m always worried about is the Constitution.”

“To me, it’s a scale, right? On one side, you have absolute freedom, you’re gonna look at nothing. The other side, you’re going to look at everything. So, where’s that scale move back and forth for national defense? To me, that scale stops at the Constitution,” Zinke said, adding that the U.S. “collects an enormous amount of information, which I’m good with, but when it drills down to a name, and that name is a U.S. citizen and resides in the United States, I think you need probable cause and a warrant before we dig deeper.”

Conservatives with the House Freedom Caucus, with which Zinke is not aligned, teamed up with members of the Congressional Progressive Caucus to derail the bill’s passage earlier this week. The coalition tanked the rule on Wednesday, forcing the Biden administration and House leadership to come to the table and agree to changes including shortening the authorization window to two years rather than five. 

A number of members of the coalition voted against the bill on Friday despite the concessions, with lawmakers on both sides saying privacy concerns are the top priority. 

Rep. Ilhan Omar (D-MN) wrote on X on Friday that she opposed the FISA reauthorization because the current system “has enabled warrantless surveillance that disproportionately targets Muslim Americans, African Americans, and other minority communities.”

Rep. Marjorie Taylor Greene (R-GA) said on the House floor that, “The question today is: ‘Do you trust the government?’”

“The same intelligence community that spied on President Trump’s campaign has been deeply invested in reauthorizing FISA,” Greene said. “These are also the same people in the intelligence community who abused FISA and spied on hundreds of thousands of Americans, and I would argue, they’ll continue to do it.”

Marc Rod contributed to this report.

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