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THE FINAL ACT ON GOVERNMENT SURVEILLANCE  
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Luke Goldstein
April 10, 2024
The American Prospect
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_ The House leadership in both parties is poised to expand, not
reform, warrantless spying on Americans. But the rank and file isn’t
going along. _

Speaker of the House Mike Johnson (R-LA) arrives for a House
Republican leadership press conference, at the Capitol in Washington,
April 10, 2024., GRAEME SLOAN/SIPA USA VIA AP IMAGES

 

A preliminary floor vote on a House rule to expand government
surveillance powers, favored by leadership in both parties, failed to
pass on an initial vote this afternoon. The rule was defeated by a
sizable margin, 228-193, with ten members not voting. Nineteen
Republicans crossed their own Speaker, voting against the rule and
preventing it from coming to the floor.

The fight involves whether to reauthorize Section 702 of the Foreign
Intelligence Surveillance Act (FISA). House Speaker Mike Johnson
(R-LA) and Minority Leader Hakeem Jeffries (D-NY) had plotted a
strategy to oversee the most dramatic expansion of government
surveillance powers since the original Patriot Act. 

With many Republican members voting down the rule this afternoon, the
path ahead to passing FISA just got a lot harder. Leadership will have
to reconvene with the relevant committees to chart out a new road
map. 

Speaker Johnson tried to load up the rule by attaching two
controversial, unrelated resolutions that were added at the last
minute. One denounced the Biden administration’s immigration
policies and the other condemned “efforts to impose one-sided
pressure on Israel with respect to Gaza.” These resolutions were
likely included to try to make it more challenging for Republicans and
pro-Israel Democrats to vote no, despite objections they might harbor
about FISA. But the gambit did not work.

“The Speaker’s thumb just broke the scale,” said Sean Vitka,
policy director of Demand Progress.

Danger still lies ahead, and the stakes remain pretty high.
Intelligence agencies are currently able to tap a backdoor search
database of Americans’ communications without a warrant, under the
guise of queries regarding a foreign threat. And under what’s known
as the data broker loophole, the government can also compel certain
types of companies to hand over data collected on Americans. In each
instance, the House Intelligence Committee is now pushing for broader
legal criteria authorizing this surveillance. Reform advocates have
referred to the Intel Committee’s amendments as “Patriot Act
2.0.”

One Intel Committee amendment would expand the already broad
definition of foreign intelligence in FISA to specifically include any
information about international trafficking, sale, and production of
narcotics driving “overdose deaths,” which could cover any drug
under the Controlled Substances Act.

Another amendment targets immigrants traveling to the U.S. by allowing
intelligence agencies to run backdoor searches on these groups without
providing any rationale, which is the only restriction on these powers
when applied to Americans.

With many Republican members voting down the rule this afternoon, the
path ahead to passing FISA just got a lot harder.

“As if the base text wasn’t bad enough, these amendments would all
significantly expand Section 702. In particular, the weaponization of
a post-9/11 warrantless surveillance authority to search for
immigrants traveling to the U.S.—with no suspicion of wrongdoing
whatsoever—is deeply offensive and should be radioactive,” Chris
Baumohl, law fellow at the Electronic Privacy Information Center
(EPIC), told the _Prospect_.

House Intelligence Committee leaders are also pushing for watershed
changes to the data broker loophole, by dropping key qualifications on
which types of businesses are subject to Section 702 information
requests. It could now potentially cover companies as far-reaching as
office buildings, landlords, and even the backbone of the internet
such as data centers, according
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FISA Court amicus lawyer Marc Zwillinger. Access to data centers would
constitute a massive expansion of “upstream” government
surveillance, Zwillinger suggested.

The data broker amendment does so in part through one small tweak, by
eliminating the word “communication” from the class of covered
“service providers” and adding other language such as
“custodian” to the list of individuals who can be forced to work
with 702 orders.

During the last reauthorization fight in February, House leadership
struck a deal to allow some of these amendments onto the floor, as
part of a grand bargain with the Judiciary Committee to let Section
702 reformers have their own set of amendments. But in the past few
days, leadership stabbed reformers in the back by rewriting key parts
of the base text for the compromise bill, the Reforming Intelligence
and Securing America Act (RISAA), to incorporate poison pills for
curtailing surveillance powers.

In particular, Speaker Johnson stripped out language previously in
RISAA that mentioned “commercially available” information. That
subtle change, in procedural terms, means that any reform to close the
data broker loophole would not be germane to the text and thus is off
the table. The text already favored the Intelligence Committee by
including a provision that erodes the oversight powers of the FISA
Court. It also carves out an exemption for members of Congress to be
notified if government authorities conduct a search on their
communications without a warrant.

Reformers still submitted amendments for their core demands, primarily
a warrant requirement on American citizens. However, in a bizarre turn
of events, Johnson and Jeffries have both stated that they won’t
support the warrant requirement, despite voting for amendments in the
past that would do the exact same thing. In Johnson’s case, he
supported a warrant requirement as recently as _this past
year_ before he assumed the Speaker’s chair.

It appears that Johnson is backtracking on the promise he made to
Judiciary in a bid to save his own skin, and win over Intelligence
Committee members in order to avoid a full-on caucus revolt against
him. His calculation is that he can’t please the Freedom Caucus
anyway, so he might as well ditch their crusade against Section 702.

“Johnson is betting that he may even get political help from some
Democrats on Intelligence and leadership by backing their FISA
demands, though I’m not sure it will work,” said Elizabeth
Goitein, co-director of the Liberty and National Security Program at
the Brennan Center.

In sum, Speaker Johnson is rewarding House Intelligence Committee
chair Rep. Mike Turner (R-OH) and his enablers by giving them
everything they want and more in the fight to reauthorize sweeping
government surveillance powers.

But Johnson may not have prepared for the intensity of the backlash
from Freedom Caucus members and pro-reform elements of both parties.
Now he has an uncertain path forward.

That Turner retains any good standing in the eyes of leadership is
shocking given that he and his colleagues on the Intelligence
Committee were willing to openly obstruct the congressional process in
February to block a vote on reforming Section 702, while jeopardizing
classified intelligence about a supposed national-security threat from
Russia. This essentially gave a giant middle finger to every actor
involved in the legislative fracas, including the White House’s
National Security Council.

The outpouring of condemnations after Turner pulled this stunt, from
the White House, Democrats, and even Speaker Johnson, appears to have
been forgotten.

Over the course of this past year’s FISA fight, the Intelligence
Committee has resorted to a range of erratic fearmongering tactics.

Before the Thursday vote this week, the Intelligence Committee called
for one final intelligence briefing on Wednesday afternoon, to scare
members about national-security threats and influence their vote on
Section 702. It’s anyone’s guess what timely information Turner
and company believe members need to hear right before they cast their
vote.

Last time they did this, Turner emerged from the briefing squawking to
anyone within earshot about the imminent terror of Russian space
nukes. The strategy was successfully deployed to kill a vote on FISA
reforms. While White House officials excoriated him for leaking the
information, they did go to great pains to note that the intelligence
was obtained through Section 702 powers, without mentioning that this
use of the authority had nothing to do with the warrant requirement
amendment, which only covers domestic citizens.

Over the course of this past year’s FISA fight, the Intelligence
Committee has resorted to a range of erratic fearmongering tactics
that seek to blur the lines between domestic and foreign threats in
ways that directly violate the spirit of FISA. As Wired reported, Mike
Turner recently convened a briefing explicitly to drum up Republican
support for FISA reauthorization that featured a presentation about
anti-war demonstrations in New York City against the war in Gaza,
insinuating that the protesters had ties to Hamas, however unfounded.
This would be a highly dubious use of FISA powers to spy on domestic
protesters, since FISA only explicitly authorizes warrantless
surveillance and targeting of foreign individuals.

Intelligence Committee members also circulated memos, drumming up
fears about rampant child predators and the proliferation of online
child pornography if Congress closed the backdoor search loophole in
Section 702. Though the language in these memos is vague, this threat
once again does not have a clear verified connection to any foreign
national-security threat. It instead appears to openly celebrate
non-authorized government use of FISA to spy on domestic citizens
without a warrant, however unsympathetic the individuals may be in
this case.

In a third, separate incident, multiple sources confirmed to
the_ Prospect _that during a briefing earlier this year, government
officials from the Department of Justice and the National Security
Council raised an example of a domestic citizen building a homemade
bomb. One staffer rebutted this claim by pointing out that our legal
system’s exigent circumstances exception would already allow police
authorities to raid someone’s home before obtaining a warrant if
they believed there was an immediate threat. In other words, there was
no clear rationale for warrantless surveillance powers.

_Luke Goldstein is a writing fellow at The American Prospect._

_Read the original article at Prospect.org.
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_Used with the permission. © The American Prospect, Prospect.org,
2024. All rights reserved. _

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* Government Surveillance
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* Patriot Act
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* Domestic Spying
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