Lawmakers are returning to Washington with a rapidly approaching deadline to extend the nation’s warrantless surveillance powers and with the same competing factions that have stalled the bill’s progress over the last several months.
Section 702 of the Foreign Intelligence Surveillance Act (FISA), and with it the government’s ability to spy on noncitizens located abroad, is set to expire April 19.
The deadline comes after Congress passed a short-term extension of the law last year because lawmakers failed to agree on how to reform the controversial spy powers.
Various national security leaders are expected to make their pitch for the bill Wednesday in an all-member House briefing.
The House Rules Committee is also expected to mark up the legislation Tuesday, using the same base text that in February left Speaker Mike Johnson (R-La.) swiftly reversing plans to bring the measure to the floor.
The same bill is likely to face the same problems.
FISA 702 has pit House Judiciary Committee Republicans and House Intelligence Committee Republicans against each other, each camp joined by Democrats who either think the bill needs to include a warrant requirement for data on Americans swept up in surveillance or who argue such a measure would undermine the tool entirely.
Privacy hawks see a warrant as the only way to protect Americans from being surveilled. It’s a stance that’s created strange bedfellows — both House Judiciary Chair Jim Jordan (R-Ohio) and ranking member Jerry Nadler (D-N.Y.) support the measure.
But the intelligence community says it would stop law enforcement from acting on information in real time. The position is backed by the White House and members of Congress who rallied behind an earlier proposal that added guardrails but stopped short of a warrant requirement.
Speaking with reporters Friday, one senior administration official said a warrant requirement would “fundamentally undermine our ability to protect the homeland.”
“Let me be very clear. Such a requirement is not only legally unnecessary, but it is a policy choice that will make the country less safe,” they said.
The text of the FISA reauthorization bill doesn’t include a warrant requirement but does contain numerous reforms to address concerns about prior abuse by the FBI.
FBI supervisors or attorneys would have to approve any agent query that might involve U.S. citizens — a figure that has dropped substantially since a shift in the FBI search portal that opted agents into searching the 702 database.
It also requires an after-the-fact review of all 702 queries of U.S. citizens.
For intelligence community leaders, there is no substitute to Section 702.
“I’m not sure I’ve seen a time when our country faces such a complex set of threats and such a dangerous threat landscape. … I’ve never seen a time when a single authority is as important to protecting the country as Section 702 is today,” another senior administration official said.
They added that 702 fills that role with “a speed and reliability that we cannot cannot replace with any other authority.”
Still, efforts to add a warrant requirement have rocked the bill’s path to the floor, and could do so again.
House Judiciary members, including Jordan, have pushed for a vote on the House floor on adding a warrant requirement to the bill. Members had lobbied Johnson to back an earlier proposal from Judiciary and protested his offer to bring the two competing bills to the floor.
It’s still an open question whether the bill can pass through the Rules Committee, a panel stocked with FISA critics, to enable an amendment vote.
“Massie, Roy, and Norman could definitely bring the heat,” one Republican aide said of Reps. Thomas Massie (R-Ky.), Chip Roy (R-Texas) and Ralph Norman (R-S.C.).
“That could totally happen,” they added when asked about prospects for the trio sinking the bill in committee.
If the bill can’t get out of Rules, it would take a two-thirds majority, or about 290 votes, to pass the legislation.
“The big question will be can it get through Rules, or does it have to go under suspension,” said one source familiar with the situation.
“If it does go under suspension, it needs more votes, and there can’t be amendments. So that will be interesting, to see how it plays out,” the source added.
Democrats are similarly divided over whether to support the bill, as a number have also called for a warrant requirement or other reforms.
But the first hurdle of even determining how the bill comes to the floor is “just going to come down to Republican dynamics,” the source said.
Johnson made a pitch to unify the Republican conference, writing to colleagues that “if our bill fails, we will be faced with an impossible choice and can expect the Senate to jam us with a clean extension that includes no reforms at all. That is clearly an unacceptable option.”
It’s not clear the Speaker’s claim is accurate — the Senate has several competing proposals, all of which reform the program.
On Friday, privacy rights groups ranging from the American Civil Liberties Union to FreedomWorks urged lawmakers to reject any path to the floor that doesn’t include a vote on an amendment for a warrant requirement.
The groups called the legislation “carefully crafted to preserve the status quo, not to enact the serious privacy protections for which most Americans and members of Congress are calling,” saying they “therefore urge you to oppose Floor consideration of any legislation, including RISAA, that would reauthorize Section 702 without providing votes on key amendments.”
Part of the intelligence community’s resistance to a warrant requirement is the delays it would impose on accessing information that requires immediate, real-time review.
“It takes weeks to obtain traditional FISA warrants,” a senior administration official told The Hill in a statement.
“Court pre-approval of queries would cause dangerous delays and harm our ability to disrupt threats. Extreme proposals to require probable cause before running a U.S. person query would gut the basic value of the tool because queries are critical at early stages before the government knows enough about the threat to meet probable cause.”
Biden administration officials have also made clear they hope the third time is the charm in terms of plans to bring the bill to the floor, rejecting the idea of another short-term extension while Congress deliberates over how to proceed.
“Whether the intelligence community and law enforcement can rely on an absolutely essential authority should not be up for grabs, should not be called into question every three months. That’s an irresponsible way for Congress to legislate, an irresponsibility for Congress to do its part in trying to help us, the executive branch, protect the American people,” a senior administration official told reporters.
