Congress on Thursday approved a short-term extension of the U.S. government’s warrantless surveillance authorities, delaying a decision over how to reform the law to at least the spring of 2024. The final vote results for the roll call was 310 to 118.
Earlier this week, House Speaker Mike Johnson (R-La.) allowed the Section 702 of the Foreign Intelligence Surveillance Act (FISA) extension to be attached to the “must pass” National Defense Authorization Act (NDAA).
The bill is now headed to the White House for Joe Biden’s signature.
Section 702 is an extremely controversial surveillance tool that was created to surveil terror suspects outside the United States, but has been used repeatedly to spy on American citizens.
Members from both parties have accused the government of abusing FISA and have long wanted to make significant changes to the law. Several key Republicans argued earlier this year to let the provision expire after an unsealed Foreign Intelligence Surveillance Court document found that the FBI misused Section 702 more than 278,000 times in 2020 and early 2021. Targets of the surveillance abuse included “crime victims, January 6 riot suspects, and people arrested at protests in the wake of the police killing of George Floyd in 2020.”
In one particularly egregious case, the feds reportedly relied on Section 702 of FISA to spy on 19,000 donors to a congressional candidate.
Rep. Thomas Massie (R-Ky.) posted the names of “the 118 Representatives who voted to protect your right to privacy” on X. There were 73 Republican nays and 45 Democrat nays.
“We lost but it was close,” he said.
Here are the 118 Representatives who voted to protect your right to privacy. (Nay to FISA warrantless surveillance as part of NDAA)
We lost but it was close. We needed 143 votes (1/3) to stop FISA since they suspended the rules to bring it to the floor. https://t.co/xqMeOn8SKM pic.twitter.com/2hgHHdgY6z
— Thomas Massie (@RepThomasMassie) December 14, 2023
The passage of the NDAA with the FISA extension avoids an end-of-the-year expiration of its powers, but prolongs the battle over its use against Americans until at least April of 2024.
Two House Committees had introduced bills to reauthorize and reform FISA: The House Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act of 2023 and the House Permanent Select Committee on Intelligence’s (HPSCI) FISA Reform and Reauthorization Act of 2023.
Conservatives had favored the Judiciary Committee’s bill and argued that the HPSCI legislation actually expanded the government’s surveillance powers.
Speaker Johnson had originally intended on putting both bills on the House floor for a vote, but ended up yanking them after a contentious conference meeting.
During one heated exchange, “Rep. Warren Davidson (R-OH), who sits on the Judiciary Committee and helped craft that version of the bill, accused Intelligence Committee Chairman Mike Turner (R-OH) of ‘f***ing lying’ about the judiciary bill,” The Washington Examiner reported on Monday.
“I think the former speaker said it very well when he said we should take the time it takes to get one bill and take the time it takes to get it right,” said Rep. Darrell Issa (R-CA), a member of the Judiciary Committee.
Now, both bills have been punted into next year.
And according to the national security experts at Defense One, the passage of the NDAA could amount to “a de facto 16-month extension of Section 702.”
Although Section 702 supporters claim that the NDAA rider is only a four-month extension of the surveillance law, in practice, it will function as a 16-month extension—pushing this debate off until 2025. That’s because the government is very likely to seek a new annual authorization from the FISA Court in April, giving it another year to conduct surveillance under the same obscure provision in FISA.
Several conservative lawmakers expressed frustration on Thursday over the inclusion of the controversial measure in the must-pass bill.
“The fact of the matter is what’s being stated is it is impossible to oppose the National Defense Authorization Act because we put a pay raise in it or because we put something in there that is seemingly so important that we have to ignore the critical destruction of our civil liberties by adding FISA extension right on the top of it without doing the forms necessary to protect the American people,” said Rep. Chip Roy (R-Texas), who wanted the FISA reauthorization to be in a stand-alone bill.
“We do this every year,” he added.
“I love our military. That’s why I voted for the NDAA passed this summer under Speaker McCarthy that included a 30% pay raise for junior members of the military,” wrote Rep. Marjorie Taylor Greene (R-Ga.) on X.
But the NDAA negotiated by Speaker Johnson, Chuck Schumer, Mitch McConnell and Hakeem Jeffries removed that pay raise.
Not only that, it didn’t remove Ukraine funding and doubled it to $600 million, funded abortion vacations, and kept trans in our military.
Worst of all, they shoved the FISA spy court into our defense bill. The NDAA should NEVER reauthorize the weaponization of our justice system that Joe Biden’s DOJ and the FBI are using to spy on American citizens!
I voted NO!
But Matthew Olsen, assistant attorney general for the National Security Division, said the FISA extension was critical to national security.
“We are relieved and grateful that Congress recognizes that allowing Section 702 to lapse even temporarily would be catastrophic to U.S. national security and the safety of the American people. We cannot afford to be blinded to the many threats we face from foreign adversaries, including Iran and China, as well as terrorist organizations like Hamas and ISIS,” Olsen said in a statement.
“We urge Congress to act swiftly in the new year to reauthorize this critical intelligence tool,” he added.
The American Civil Liberties Union blasted the extension, and vowed to lobby against its reauthorization in 2024.
“It’s incredibly disheartening that Congress decided to extend an easily-abused law with zero of the reforms needed to protect all of our privacy. As long as Section 702 is being used by the government to spy on Americans without a warrant, we will continue to fight this unconstitutional law and work with Congress to strengthen our Fourth Amendment protections against government surveillance,” the American Civil Liberties Union said in a statement.
The ACLU on Monday endorsed the House Judiciary Committee’s bill and warned against the HPSCI legislation, saying it “does not represent reform and would greatly expand the government’s ability to spy on Americans without a warrant.”
Elizabeth Goitein, Co-director of the Liberty and National Security Program at the Brennan Center for Justice, lamented on X that “lawmakers caved to abject fearmongering by the administration & surveillance hawks in Congress,” but noted the vote “was much closer, especially in the Senate, than a lot of observers expected it to be.”
Goitein added: “The closeness of the votes will help build momentum for reform. Because the fight continues. We can’t sit back and wait for 16 months; we must demand that Congress reform Section 702 *now* to end the abuses and rein in warrantless surveillance of Americans.”