In a major reversal, the House on Friday passed a two-year reauthorization of an expiring warrantless surveillance law that was stalled earlier this week due to Republican Party resistance — but only after narrowly rejecting a bipartisan effort to restrict searches of Americans’ messages swept up by the program.
The bill now moves to the Senate ahead of the scheduled April 19 expiration of the law, known as Section 702 of the Foreign Intelligence Surveillance Act, or FISA. His passage was a remarkable resuscitation of a collapse a few days ago on the upper floor of the house after former President Donald J. Trump urged Republicans to “kill” the law.
Seeking to save the measure before the law expires next week, Speaker Mike Johnson proposed a shorter extension than the five years originally considered, persuading far-right Republicans who had blocked the bill to allow it to move forward. The final vote was 273 to 147. Republicans were split 126 to 88 on the issue, while Democrats were split 147 to 59.
Until the last minute, it was unclear what form the final bill would take as lawmakers considered a series of proposed changes whose fate several members said would determine their positions. More importantly, lawmakers initially rejected a proposal to ban FBI agents and intelligence analysts from using Americans’ identifiers — like email addresses — to query the repository of messages scanned by the program unless these officials obtain warrants first.
A vote on an amendment to add a term requirement failed with a tie – 212 to 212, with 13 members not voting. Under House rules, a tie results in a failure. 126 Democrats and 86 Republicans voted against the mandate amendment, while 128 Republicans and 84 Democrats voted for it.
Civil liberties advocates have long called for such a restriction to protect Americans’ privacy rights. But national security officials have argued that it would cripple the program because they typically use it early in investigations, such as when trying to learn more about a found phone number or email account in contact with a foreign spy or suspected terrorist before there is enough information. evidence to meet a probable cause standard for a warrant.
The debate blurred the usual partisan lines, with members of both parties on both sides of the issue. National security hawks had easily thwarted the arrest warrant proposal in previous years, but its chances were seen as better this time because civil liberties progressives were joined by right-wing Republicans who aligned themselves with the Mr. Trump’s hostility toward the FBI and the intelligence community.
Supporters of adding a term requirement were led by top members of the Judiciary Committee, including its chairman, Rep. Jim Jordan, a Republican from Ohio, and its ranking Democrat, Rep. Jerrold Nadler of New York. They and their allies argued Friday that the change was crucial to protecting Americans’ constitutional rights.
“Searching Americans’ private communications in the 702 database – communications that the government would not otherwise have access to without a warrant – is the constitutional equivalent of conducting a warrantless search,” Mr. Nadler said.
Opposition to the mandate amendment was led by members of the Intelligence Committee, including its leaders, Representatives Michael R. Turner of Ohio, the Republican chairman, and Jim Himes of Connecticut, its ranking Democrat. They argued that adding a warrant requirement would “blind” security officials to potentially crucial information they already possess.
The House also passed several other important amendments. They included authorization to use the Section 702 program to collect intelligence on foreign drug trafficking organizations and to screen potential foreign visitors to the United States; allowing certain congressional leaders to attend classified hearings before a court that oversees national security oversight; and expand the types of businesses with access to foreign communications that may be required to participate in the program.
But the substantive debate in recent days has been overshadowed by the political fury unleashed by Mr. Trump, who this week ordered lawmakers in a social media post to “KILL FISA,” saying it had been used to illegally spy on his 2016 presidential campaign.
Mr. Trump’s assertion was legally and politically inconsistent because there are two types of FISA surveillance, and the type that expires — Section 702 — has nothing to do with the type that the FBI used in his investigation into ties between his campaign and Russia amid Moscow’s covert efforts to help him win the 2016 election.
Wiretapping for national security investigations targeting Americans or people domestically is governed by the traditional type of FISA, which requires warrants; an inspector general found that the FBI botched its warrant requests to wiretap a former Trump campaign adviser during the Russia investigation. This type of FISA, created by Congress in 1978, does not expire.
In contrast, Section 702 allows the government to collect messages from U.S. companies like AT&T and Google without a warrant from foreigners abroad who have been targeted for foreign intelligence or counterterrorism purposes. – even when communicating with Americans. He legalized a form of warrantless wiretapping program that former President George W. Bush secretly created after the Sept. 11, 2001, terrorist attacks.
Yet Mr. Trump maintains substantial political influence over Republicans in Congress, and after his broadside, 19 House Republicans, most aligned with the ultraconservative House Freedom Caucus, voted Wednesday to block consideration of the bill, sending leaders back to the drawing board.
Mr Johnson’s decision to reduce the bill from five years to two – meaning that if Mr Trump won the 2024 election he would control the White House at renewal time – allowed Republican defectors to far right to claim victory. while allowing the file to move forward. On Friday, all 19 of them changed their position and voted in favor of the bill.
It remains to be seen whether the Senate will pass the bill before Section 702 expires on April 19. But this is a soft deadline: the program can continue to operate until April 2025 because last week the FISA court obtained a request from the government authorizing it for an additional year. Under the law, surveillance activity can continue as long as there are active court orders authorizing it, even if the underlying law expires.
Even so, the Intelligence Community has urged Congress to pass reauthorization of the legislation before the program enters this kind of legal loophole, raising the possibility that vendors will be reluctant to continue cooperating and leading to loopholes. in collection until court battles ensued on the subject. the question can be resolved.
Although the bill does not include the warrant requirement long sought by privacy advocates, it places many new restrictions on how the FBI can search for information about Americans in the swiped communications repository. in the program.
Although there are limits on how these records can be searched and used, the FBI has repeatedly violated these constraints in recent years, including inappropriately. request information about Black Lives Matter protesters and individuals suspected of participating in the January 6, 2021 riot at the Capitol.
The FBI has since strengthened its system to reduce the risk of requests that violate standards, and the bill under consideration would codify those changes and add reporting requirements, as well as limit the number of officials with access to the repository raw information.
Before the vote Friday, a senior national security official, speaking on condition of anonymity to discuss a sensitive topic, said hostile adversaries were closely monitoring the debate in Congress and hoped lawmakers would deprive the US intelligence agencies with a key capability.
Kayla Guo reports contributed.
