The Final Act on Government Surveillance
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 to 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. https://prospect.org/politics/2024-04-10-final-act-government-surveilla…
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