Senate negotiators are still aiming to get a clean extension of FISA into the annual defense authorization bill, despite House Republicans moving forward with their own version of the high-stakes legislation.
An eclectic bipartisan group of members led by Rep. Andy Biggs (R-Ariz.), as well as Judiciary Committee Chair Jim Jordan (R-Ohio) and Rep. Jerry Nadler (D-N.Y.), the panel’s ranking member, introduced a new FISA reform proposal on Monday. That puts them on a collision course with the Senate, White House, Justice Department and U.S. intelligence agencies. Section 702 of FISA and other provisions will expire at the end of this year.
Across the Capitol, senators are working out details on what a short-term FISA extension would look like as part of the NDAA. Negotiators are expected to release legislative text for the annual defense authorization bill as early as tonight.
“That’s the negotiation that is going on, primarily between the Judiciary Committee and the Intel Committee,” Senate Armed Services Committee Chair Jack Reed (D-R.I.) told us.
The Justice Department and the Director of National Intelligence Office sent a letter on Monday night to Senate Intelligence Committee Chair Mark Warner (D-Va.), along with GOP Sens. John Cornyn (Texas) and Lindsey Graham (S.C.), highlighting the importance of renewing FISA.
The letter, obtained by Punchbowl News, states that Section 702 is “vital for insights into foreign terrorist organizations, including Hamas,” citing the ongoing conflict in the Middle East. DOJ officials also object to a major change being pushed by the House.
FISA remains a hugely divisive issue in Congress. Both conservatives and progressives have civil liberty concerns about extending Section 702 authority without significant changes to the law.
Sen. Ron Wyden (D-Ore.) — long a FISA critic — said he hasn’t been engaged with the Senate talks but doesn’t see a clean extension being possible with the level of opposition on the Hill.
“We’re going the distance with reform. Business as usual is not going to be acceptable,” Wyden told us. “When I started, it was pretty lonely. You could have meetings about 702 reform operations in a couple of phone booths. And I’m looking around now and I’m seeing a lot of allies.”
The House view: Jordan and House Intelligence Committee Chair Mike Turner (R-Ohio) met with Speaker Mike Johnson on Monday night to discuss FISA reforms.
Johnson is sharing very little with his leadership team about what his plans are for FISA. Last week, Johnson voiced support for a temporary FISA extension until early February, lining it up with the second government funding deadline.
But that would put Johnson at odds with conservatives — chiefly the House Freedom Caucus — who see reforming FISA as a top priority. Jordan and some in leadership, including Majority Leader Steve Scalise, want changes to the law as well. In addition, conservatives are already skeptical about some policies in the NDAA — and Johnson’s team has cautioned leadership about attaching FISA to the defense policy bill.
To that end, the House Judiciary Committee will hold its markup on their bill — dubbed the Protect Liberty and End Warrantless Surveillance Act — starting at 10 a.m. on Wednesday. The legislation would reauthorize Section 702 for three years but with major revisions.
The House bill would require all intelligence agencies and the FBI to obtain a warrant from a FISA court before reviewing communications involving any U.S. person caught up in an investigation. It would also reduce the number of FBI officials allowed to make such queries of information collected under 702.
Additionally, federal agencies couldn’t purchase data on Americans from Big Tech companies without a warrant, said Biggs.
“Without serious reforms to FISA 702, our Fourth Amendment rights will be all but gone,” Biggs said in a statement. “My legislation addresses numerous loopholes in federal law to end this unconstitutional practice and to ensure rogue agents are held accountable.”
The House Intelligence Committee will hold its markup on Thursday morning, though few details have been released about its proposal. However, we do expect it to be a different version than Judiciary’s proposal.
Intelligence Committee Ranking Member Jim Himes (D-Conn.) told us last week he opposed his colleagues’ arguments to revamp FISA, emphasizing that any lapse in the law would impact national security.
But there’s a growing list of 50-plus lawmakers who have publicly said they won’t support a short-term clean FISA extension. Last week, a bipartisan group wrote to Democratic and GOP leadership to raise their concerns about taking such action.
— Mica Soellner and John Bresnahan
