Lawmakers on the House Judiciary and Intelligence committees are fighting over how to rewrite rules for the government’s chief spying tool before it expires at year’s end.
The House Judiciary Committee insists that Section 702 of the Foreign Intelligence Surveillance Act, which allows the government to scoop communications from a wide range of non-American targets abroad, must be fundamentally rewritten to stop a history of abuses that snared Americans.
But the intelligence committee says a total rewrite would undermine the value of the program, which the national security community says is the backbone of U.S. efforts to constrain China, stop fentanyl smuggling cartels and sniff out terrorist attacks.
The issue boiled over this week in a closed-door meeting in a soundproof room in the basement of the Capitol that had been swept for electronic bugs — known as a sensitive compartmented information facility or SCIF in Washington spy jargon.
“The Intel Committee is supposed to spy on foreigners. The Judiciary Committee has the domestic side of this and this is our jurisdiction,” said Rep. Thomas Massie, Kentucky Republican and a member of Judiciary, as he emerged from the room. “If you want to surveil Americans, that doesn’t belong in the Intel Committee. They have oversight over the CIA and other things that aren’t civilian in nature.”
But intelligence committee members said the Judiciary Committee folks don’t understand “the nuances” of the program and what’s at stake. They said their plan would protect Americans without doing serious damage to the national security abilities of Section 702.
“Obviously, we’ve been working on this thing for a while. It’s got the right reforms in it to fix and to prevent the abuses from the past,” Rep. Mike Garcia, California Republican, told The Washington Times outside the meeting.
Section 702 authorizes the collection of massive amounts of communications of foreigners outside the U.S., though Americans who communicate with them also get scooped up. Government agencies can then query the data without a warrant — including sometimes querying for the American’s identity.
Repeated abuses have both Democrats and Republicans vowing changes, though there’s intense disagreement over how far to go.
The law expires at the end of this year, creating a major opportunity for reformers to demand changes or allow the program to disappear.
House Speaker Mike Johnson this week said Congress may need to temporarily extend FISA as is to give lawmakers more time to rewrite it. The extension would be included in the must-pass annual Pentagon policy bill.
Intelligence community officials have pleaded with Congress for a full renewal, saying Section 702 data accounts for an outsized amount of U.S. intelligence products. Nearly 60% of the articles in the president’s daily security briefing in 2022 contained information gleaned from 702 collections.
Intelligence officials also insist they’ve taken steps to rein in abuses.
Last year, the Office of the Director of National Intelligence revealed that the FBI conducted up to 3.4 million warrantless searches of U.S. citizens’ FISA-collected data in 2021. That number plunged to 204,000 the following year after the changes.
However, an FBI spokesperson said that reducing the warrantless search numbers was “not the goal of their reforms. … This number could well increase again in future years.”
Multiple groups of House and Senate lawmakers are working on versions of FISA legislation.
The intelligence committee’s FISA working group, which is led by GOP Rep. Darin LaHood of Illinois, recently released a report outlining 45 proposed changes, including 19 intended to stop the FBI’s abuses in querying Americans.
Changes would restrict the number of FBI personnel who can authorize a query of a U.S. person and require the FBI to obtain a warrant to conduct a query on Americans if they are seeking evidence of a crime.
It also urges the creation of a specific criminal liability for leaks of a U.S. person’s communications collected under 702, mandates independent audits of all FBI searches of U.S. persons in the 702 database and prohibits queries to suppress Americans’ political opinions or religious beliefs.
The House Judiciary Committee’s working group hasn’t revealed its plan, but the panel announced earlier this week that a markup of their expected legislation is scheduled for Dec. 6.
A bipartisan group of lawmakers from both chambers has proposed a major rewrite, including requiring law enforcement to secure a warrant before searching U.S. individuals’ data and outlawing the purchase of U.S. individuals’ data from brokers without a warrant.
Their plan also prohibits the monitoring of foreign individuals outside the U.S. as a pretext to surveil U.S. persons within the country, known as “reverse targeting,” and would shut down gathering non-U.S. citizens’ communications that merely reference U.S. persons.
That bipartisan group signaled it would oppose a temporary extension.
“A temporary extension would be entirely unnecessary and it would be an inexcusable violation of the public’s trust to quietly greenlight an authority that has been flagrantly abused,” the 54 lawmakers wrote in a letter.
However, according to Rep. Andy Biggs, Arizona Republican, key elements of that legislation is likely to end up in the Judiciary bill next week.
“You’re going to see an amalgamation. I’m very optimistic. I think it’s going to be bipartisan,” Mr. Biggs told The Times. “It’s going to be hopefully overwhelming as we send it to the Senate. I know we have bipartisan support in the Senate as well for what we’re doing.”
• Kerry Picket can be reached at kpicket@washingtontimes.com.
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