FISA bill overcomes key hurdle to tee up floor fight on warrant requirement

A bill to reauthorize the nation’s warrantless surveillance powers passed a key hurdle in the House on Tuesday even as it still faces a rocky pathway to the Senate – including a floor fight over whether to add a warrant requirement to the bill.

The House Rules Committee on Tuesday gave its blessing to a bill that would reauthorize for five years Section 702 of the Foreign Intelligence Surveillance Act (FISA), which greenlights the government to spy on foreigners located abroad.

The Reforming Intelligence and Securing America Act includes a number of reforms to provide greater oversight of how agencies, particularly the FBI, use a tool that also sweeps up the communications of Americans who communicate with those being surveilled.

But while billed as a compromise measure, it comes after months of feuding between the House’s Intelligence and Judiciary committees, pushing its consideration up against the April 19th deadline.

The latest bill also hews more closely to the prior Intel legislation, reigniting frustration from Judiciary members who want a warrant requirement for accessing Americans' data – a detail set to be handled in a floor showdown on a controversial amendment to add one.

In many ways, the bill’s future hinges on that amendment. Though loudest in Republican circles, many lawmakers have said they will not back a FISA reauthorization if the warrant amendment is not approved.

To privacy hawks it's a needed protection. For the intelligence community, it would essentially gut the law and eliminate a key national security tool.

“Without the warrant requirement I don't think we’ve protected Americans in the way that we should,” House Judiciary Chair Jim Jordan (R-Ohio), who has been among those leading the charge for adding such an amendment to the 702 legislation, told the committee.

“If you're going to look at this, what I call the ‘haystack’ of information that is collected, which has Americans’ information…then you should go to a separate and equal branch of government to get a warrant to do so,” Jordan added.

“Without that in the legislation, we’re not going to support it.”

But Intel committee leaders echoed the warnings of the intelligence community, who said doing so would blind stop law enforcement to key information and stop them from acting in real time, as it could take weeks to secure a warrant.

Rep. Jim Himes (Conn.), the top Democrat on the Intelligence Committee, noted that in many cases, agencies like the FBI are using the 702 database to ferret out information on potential threats – information that would likely be insufficient to get a traditional warrant.

“Say a member of Congress has been discussed by Chinese intelligence officers. There's no real worry that the member of Congress is engaged in a crime. But obviously, our intelligence community would like to know why Chinese intelligence officers are talking about a member of Congress,” Himes said.

“If we pick up that an ISIS leader is talking to an individual in Los Angeles, who is by definition a U.S. person, we have no idea why that conversation is occurring. It could be a family member or a friend. So you cannot go to a judge and say, ‘We have no idea why this communication is occurring, but we want you to issue us a probable cause warrant.’ That is why the administration says the passage of a warrant requirement would shut this program down.”

The scene at the House Rules Committee on Tuesday was emblematic of the unusual fault lines underlying the debate. Jordan sat alongside Judiciary ranking member Jerry Nadler (D-N.Y.) to pitch a warrant requirement, while House Intelligence Chair Mike Turner (R-Ohio) and Himes argued against it, even as they backed the concept of allowing the matter to come to a floor vote.

Tensions flared between the two sides, with members of the Rules panel getting annoyed as they bickered among themselves rather than addressing members of the committee.

“It’s clear that you don't agree with each other,” Rules ranking member Jim McGovern (D-Mass.) said, urging them to “cut to the chase” by noting both sides agreed the matter should be weighed by the full House.

“If we’re all in agreement, [the warrant amendment] should hopefully be made in order and we can debate this on the House floor.”

Even without the warrant requirement, the bill includes significant reforms to address concerns about prior abuse by the FBI.

FBI supervisors or attorneys, a group of about 500 people, would have to approve any agent query that might involve U.S. citizens. While that figure in prior year was quite high, it’s dropped substantially since a shift in the FBI search portal that had opted agents into searching the 702 database. By doing so the number of searches impacting Americans plummeted from 2.9 million in 2022 to 119,000 last year.

The bill also requires an after-the-fact review of all 702 queries of U.S. citizens and agents now face both civil and criminal penalties if they improperly use the database. 

Nonetheless, those in favor of a warrant say the legislation won’t do enough to limit access to Americans’ information, whose communications with foreign targets may be reviewed.

“Courts have already ruled that you have no constitutional right to privacy as an American to correspond with an ISIS head who's a foreigner located abroad. That is not protected communication,” Turner said, noting that the government would be able to access only Americans’ messages and responses to those being surveilled while having no insight into their communications with anyone else.

“Don't let anybody tell you this is a warrantless program surveilling Americans.”

National security leaders have been making the rounds in recent days stumping for the bill.

That includes an all-member House briefing slated for Wednesday with national security leaders in what could be the final chance to touch base with lawmakers ahead of the vote.

A senior administration official noted in a call with reporters Friday that 224 members of the House, as well as 23 members of the Senate, were not in Congress the last time FISA 702 was reauthorized. 

FBI Director Christopher Wray used his comments to the American Bar Association Tuesday to plead for passage of the bill without a warrant requirement, highlighting changes made at the agency level to curb abuse that will be codified by the new bill.

He noted the legality of the program has been repeatedly upheld, determining there is no constitutional requirement to get a warrant for information that was lawfully collected.

“If there's no constitutional, legal, or compliance necessity for a warrant requirement, then Congress would be making a policy choice to require us to blind ourselves to intelligence in our holdings. And if that's the path that's chosen, I can tell you that it will have real-world consequences on our ability to disrupt the threats I outlined-on our ability to protect the American people,” Wray said.

“There are plenty of ways to ensure compliance without paralyzing us and our ability to move fast. We’ve proven that.”